APPLICANT SEEKS FOR DIVORCE BUT FAILS TO PRODUCE MARRIAGE CERTIFICATE
Magnussen & Ladue [2021] FCCA 832 (28 April 2021)
This is a determination by the court on whether the Federal Circuit Court has jurisdiction over the divorce proceeding where there is a question as to the existence of marriage contracted overseas.
Facts:
This matter was listed for trial before me by a registrar for a contested divorce hearing.
In the applicant’s affidavit, he explains the loss of the marriage certificate. The applicant says the parties were married in the D Church in Country C. He said that he had been unable to find the marriage certificate and that he had asked the respondent to search for the marriage certificate as well, and that he had made inquiries with Centrelink and the Country D consulate, neither of which had a copy of the certificate.
The respondent filed a response to the divorce. In the response, she sought that the application for divorce be dismissed on the grounds that the parties were never legally married and refers to inquiries her solicitor made with priests of the D Church.
Issue: Does the Federal Circuit Court of Australia have jurisdiction in this divorce proceeding if there is a question as to the existence of the marriage between the parties?
Law:
Analysis:
The Federal Circuit Court does not have jurisdiction to make declarations as to the validity of the marriage. The Court cannot create jurisdiction when it does not have it and the parties cannot confer jurisdiction on the Court by consent.
Given the state of the evidence, the court is unable to grant a divorce as it cannot be satisfied that a valid marriage took place due to the gaps in the evidence and contradicting documents that are not in proper form. As The court does not have jurisdiction with respect to the validity or invalidity of the marriage, it is satisfied that the proper course is to transfer this matter to the Family Court for determination of the validity of the marriage, as simply dismissing the application creates much uncertainty for the parties and the children. It would also leave them in the unsatisfactory position of having some documents such as the children’s birth certificates, indicating that the parties were married and others not. The allegations of fraud are serious. The parties will need to address these issues and file further evidence in due course in the Family Court of Australia
Conclusion: Pursuant to Section 39 of the Federal Circuit Court of Australia Act 1999, these divorce are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.
