VOID OR INVALID?

FATISI & HASILA

FAMILY COURT OF AUSTRALIA

[2020] FamCA 209

These proceedings involve an application by Ms Fatisi (the Applicant), made in the context of Mr. Hasila’s (the Respondent) application for divorce.

FACTS:

Applicant sought a decree of nullity pursuant to s 51 of the Family Law Act 1975 (Cth) (the Family Law Act) on the basis that the marriage is void, or a declaration of invalidity of the marriage pursuant to s 113 of the Family Law Act, if such a decree is not available.

The Applicant was twelve years old when she married the Respondent in Country T in 2005.  On returning from school one day, the Applicant was told by her family that she would marry the respondent that evening.  The Applicant was scared and did not want to marry the Respondent.  The Applicant was not asked if she wanted to marry the Respondent and did not think that she could say “no”. 

The Applicant submitted that the marriage is void or invalid because of her age at that time pursuant to s 88D(3) of the Marriage Act 1961 (Cth) (the Marriage Act).  She also submitted that, on the basis that she did not give real consent to the marriage, the marriage is void or invalid according to s 88D(2)(d) of the Marriage Act.

ISSUE:

Whether there is a distinction between a marriage being void and a marriage being invalid.

HELD:

The only ground on which a decree of nullity may be granted is if a marriage is void. The Marriage Act, however, uses the term “void” in relation to Australia marriages, and “invalid” in relation to foreign marriages.

Lindenmayer J in Teves III and Campomayor said that “...if, in accordance with s.88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is “void” within the meaning of that term as used in s.51 of the Family Law Act.”

Further, under s 51 of the Act, an application for a decree of nullity of marriage must be based on the ground that the marriage is void. A void marriage is of no effect in law. It is not a marriage at all whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage.^[1]

Since in the Marriage Act, “invalidity” is equated to “void”, hence, both fall within the concept of “void” within the Family Law Act. The Court held that the Applicant was entitled to both forms of relief she sought.  This resulted in the dismissal of the Respondent’s application for divorce.

^[1] Berman J, Tao v Sterling.