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APPLICANT SEEKS DECLARATION OF HIS SECOND MARRIAGE NULL; MARRIAGE ENTERED DURING AN EXISTING AND VALID FIRST MARRIAGE

MENCO & MENCO

FAMILY COURT OF AUSTRALIA

[2020] FamCA 279

 

This case is an application for the declaration of nullity of marriage.

FACTS:

Mr. Menco (the applicant) filed an Initiating Application on 23 January 2020 seeking a declaration of nullity in relation to his marriage to the respondent, Ms Menco (the respondent) on the basis that on the date of their marriage, the applicant was married to another person.

The applicant entered into a marriage with Ms. B Menco in City C, United States of America in March 1997.  There is one child of that marriage.  The applicant separated from Ms. B Menco in about June 2004.  The applicant stated that following the separation, he received documents from Ms. B Menco, which he understood to be divorce papers.  He signed those documents with the understanding that as a result of his execution of those documents, he had been divorced from Ms. B Menco in 2004.

The applicant lived in Country F, where he commenced his relationship with the respondent.  They were married in Australia in 2015, knowing that the applicant was already divorced from Ms. B Menco. However, the applicant learned, while in the process of seeking a visa in Australia, that the divorce that he originally signed some years ago had only been entered and filed in the Court in the United States in 2016.  Hence, at the time the applicant married the respondent, he was already married to another person.

ISSUE:  

Whether or not the application seeking for a decree of nullity of marriage should be granted.

HELD:

Section 51 of the Family Law Act 1975 (Cth) (the Act) provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void.  A marriage is void when … (a) either of the parties is, at the time of the marriage, lawfully married to some other person. [1]

The Court is satisfied that the marriage between the applicant and the respondent is void  as at the time of the marriage between the parties, solemnized in 2015, the applicant was married to Ms. B Menco.  The marriage was not dissolved until 2016.  Hence, the Court, finding that the marriage between the applicant and the respondent is void, pronounced a decree of nullity of their marriage.

 

 

[1] S 23B of the Marriage Act 1961 (Cth).

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