TOPIC 3: NULLITY Family Law Topic 3

Preliminary Matters: Principal relief is defined in section 4(1) FLA ie proceedings within para (a) and (b) of definition of “matrimonial cause” in s 4(1) no definition of ancillary relief 3 categories of proceedings: divorce (sS 48, 49 and 50); or nullity (sS 51 & 52); or declarations of validity/invalidity of marriage or divorce (s 113) Family Law Topic 3

Preliminary Matters: Topic will be divided into two sub-topics: (a) Nullity of Marriage (applications) (b) Void Marriages (types of nullity) Family Law Topic 3

(1) Nullity of Marriage Preliminary matters: distinguish between nullity and divorce void marriages - nullity application or declaration of validity (a) Ecclesiastical Law void and voidable marriages illegitimacy (children) Family Law Topic 3

(b) Matrimonial Causes Act 1959 s 18(1) 9 void grounds: bigamy consanguinity affinity non-compliance with formalities duress fraud mistake mental incapacity under age Family Law Topic 3

(b) Matrimonial Causes Act 1959 s 21(1) 4 voidable grounds non consummation unsound mind V. D. wife pregnant to another man Family Law Topic 3

- jurisdiction: divorce: s 39(3) and nullity 39(4) (c) Family Law Act 1975 Section 51 Cth power jurisdiction od Court for nullity, divorce and declarations of validity – s 39(1) FLA Note: FCCA does NOT have jurisdiction in nullity or declaration of validity - jurisdiction: divorce: s 39(3) and nullity 39(4) - nullity: Aust citizen; ordinarily resident or present on date when application filedmarriage void Also see Rules (as to requirements and form) Family Law Topic 3

Nullity – elements to prove prove ‘marriage ceremony’ Ground of jurisdiction Grounds for nullity ie infringes requirement for essential validity of marriage ( grounds originally in s 51 FLA, then in 1976 transferred to s 22 and 23 Marriage Act; then in 1978 to give effect to Hague Convention on the Celebration and recognition of the validity of Marriage; then in 1986 – s 23B MA for Australia citizens S 23B – capacity to marry S 11 – marriageable age Family Law Topic 3

(2) Void Marriages Section 23B Marriage Act (a) Types (compliance with) formalities capacity consent but note s 48 Marriage Act Family Law Topic 3

(b) Capacity to Marry Sex!: see s 5 definition) also note s 46(1): ‘Marriage, according to law in Australia is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. Family Law Topic 3

also see [ss 88D(2)(b), 88D(3)] (b) Capacity to Marry Age!: see ss 11, 23B(1)(e) also see [ss 88D(2)(b), 88D(3)] Family Law Topic 3

Penalties under both Marriage Act and NSW Crimes Act (b) Capacity to Marry Bigamy!: s 23B(1)(a) [s 88D(2)(a)] Penalties under both Marriage Act and NSW Crimes Act Family Law Topic 3

Prohibited relationship!: s 23B(1)(b) [s 88D(2)(b)] (b) Capacity to Marry Prohibited relationship!: s 23B(1)(b) [s 88D(2)(b)] Family Law Topic 3

grandmother mother sister/half daughter granddaughter grandfather Man cannot marry: grandmother mother sister/half daughter granddaughter Woman cannot marry: grandfather father brother/half son grandson * Adopted and ex-nuptial children included Family Law Topic 3

s 23B(1)(d)(ii) [s 88D(2)(d)] (b) Capacity to Marry mental incapacity!: s 23B(1)(d)(ii) [s 88D(2)(d)] Family Law Topic 3

(b) Capacity to Marry mental incapacity!: s 23B(1)(d)(ii) s 88D(2)(d) Family Law Topic 3

- s 23B(1)(d)(i) [s 88D(2)(d)] (c) Consent to Marry duress: - s 23B(1)(d)(i) [s 88D(2)(d)] Family Law Topic 3

- s 23B(1)(d)(i) [s 88D(2)(d)] (c) Consent to Marry fraud: - s 23B(1)(d)(i) [s 88D(2)(d)] Family Law Topic 3

- s 23B(1)(d)(ii) [s 88D(2)(d)] - mistake as to identity (c) Consent to Marry mistake: - s 23B(1)(d)(ii) [s 88D(2)(d)] - mistake as to identity - mistake as to the ceremony Family Law Topic 3