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What constitutes fraud in relation to marriage annulment?

By August 24, 2017No Comments

By Gianna Huesch

A recent case in the family courts looked at fraud in relation to marriage annulment, specifically determining whether the husband’s consent to the marriage had been obtained by fraud.  An annulment (also known as a decree of nullity of a marriage) is a court procedure which render a marriage null and void and is only granted on very limited grounds in Australia.

In this case, the couple had married in 2008 and had two children, before separating in 2015. The husband now sought that the marriage be declared void on the basis that the wife had misrepresented that she had not been previously married despite the fact that she had in fact been married and divorced before.  The wife claims she had informed the husband about her previous brief marriage prior to them getting married:

“I told [the husband] about the marriage on a face-to face meeting so that I could gauge his reaction. I wanted to be sure that any person I married was okay with my past. He was neither pleased nor displeased. He did not seem at all surprised. He said words to the effect of “It doesn’t matter”. I did not want to say “yes” to the marriage until I knew that my previous marriage was of no issue to [the husband].”

The husband alleges that the wife concealed her first marriage from him, and says “at no point was [the wife’s] previous history or background mentioned by [the wife].”

In the reasons for judgment, Justice Tree discussed how section 23B(1)(d) of the Marriage Act 1985 (Cth) provides that a marriage can be voided on the basis that the consent of either of the parties is not a real consent because it was obtained by duress or fraud, but that “fraud” as used in that provision is only as to the identity of the other party or as to the nature of the ceremony. 

The court’s task was to ascertain the inherent plausibility or implausibility of the husband’s version in the absence of any documentation to establish either party’s version and given the “unusual” lack of cross-examination of either party (the husband was self-represented whereas the wife engaged solicitors and counsel).

Following the lead of numerous past judgments, Justice Tree dismissed the man’s application on the basis that there was no fraud as to identity or the nature of the ceremony. However, to be prudent regarding potential broader interpretations of the law, the judge also considered “the eventuality that fraud of the kind relied on by the husband can be considered under s23B”. Unfortunately for the husband, the judge was still unsatisfied that a fraud had occurred:

“Critically what is missing is any assertion that, had he been aware of the wife’s earlier marriage, he would not have consented to marrying her. In my view this is fatal to the husband’s claim.”

The case is interesting in that it considered a much broader concept of “fraud” than what is made explicit in the legislation, to effectively include instances where a spouse has been less than completely forthcoming about all aspects of their past prior to a marriage, even where this did not cause a misrepresentation as to their identity.  It raises the question of whether spouses can seek annulments based on arguments that their ex did not reveal all the skeletons in their closet…

You can read the full case here:

http://www.austlii.edu.au/au/cases/cth/family_ct/2017/475.html

We previously wrote about annulment here:

http://alliancelegal.com.au/annulment-an-easier-way-out-than-divorce/

Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.

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