CONTENTS I Introduction II Nullity, Canon Law and the Indissolubility of Marriage III Fraud as to a Person's Identity IV Fraud as to the Nature of the Ceremony V Fraudulent Misrepresentation about the Intention to Cohabit VI Consensual Sham Marriages VII Fraud as to Attributes VIII Fraud, Redundant Provisions and Statutory Interpretation IX Forced Marriage and Deception X The Changing Nature of Marriage I INTRODUCTION
The law of nullity is a remote and little visited part of the landscape of Australian family law. The subject is rarely considered in articles, (1) and gets a fairly brief treatment in most textbooks. (2) Nullity is different from divorce, because when there is a decree of nullity, the effect is to declare that there was never a valid marriage. (3)
Section 23B(1)(d) of the Marriage Act 1961 (Cth) ('Marriage Act') is the relevant provision. A marriage may be void because:
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony.
Section 23B is exhaustive as to the grounds for a decree of nullity. However, there are complex issues to consider when it comes to the question of what is a 'real consent' to marriage.
Perhaps the main reason for the lack of focus on nullity is that the law of divorce provides such an easy exit from marriage. This would seem to obviate the need to persuade a judge that the marriage was null and void. Dismissing an application from a woman for a decree of nullity in In Marriage of Osman and Mourrali ('Osman'), Nygh J commented:
Annulment had some attractions in the past when divorce was difficult and seen as socially shameful. The ground for divorce of one year separation requires no investigation of guilt and cannot produce any stigma. It is easily established and indeed the wife in this case, as I can now call her, would have been relieved far more expeditiously and cheaply from her bonds some time ago, if she had proceeded for dissolution. (4) A divorce may, of course, be granted on the basis of irretrievable breakdown, proof of which is that the parties have lived separately and apart for 12 months before the application is filed. (5) Divorce in Australia may be unilateral--that is, it does not require the consent of the other party. The only basis for opposing the divorce is that the parties have not in fact been living apart for the requisite period. (6) The court is also required to consider the welfare of any child under 18, (7) but it is the most exceptional case where this has provided a ground for delaying or refusing the divorce. (8)
Yet notwithstanding the ease of divorce, and, conversely, the cost of persuading a judge to grant a decree of nullity, there has been a steady stream of cases over the years in which an applicant has sought a decree of nullity on the basis that he or she has been tricked into marriage. (9) There has even been one case where the applicant sought to rely on her own fraudulent misrepresentations to found a decree of nullity. (10)
Routinely, in recent years these applications have failed, and generally for the same reasons. The applications have been based upon the ground of fraud; but the Family Court has held that fraud, in the relevant section of the Marriage Act, is only relevant if it goes to the nature of the ceremony or the identity of the person, and not the motivation for entering the marriage. Yet litigants have kept coming, kept insisting that their marriage should be declared invalid when their consent has been induced by dishonest misrepresentations.
The very strict approach to the law of nullity taken historically has continued despite the easing of the restrictions on divorce over the years. It has not been reconsidered even in an age of no-fault divorce. The policy question, to which the 'tricked into marriage' cases give rise, is why the courts should insist upon the validity of marriages to which an informed consent has not been given at a time when marriage itself has become an optional means of family formation, when de facto relationships are given essentially the same status as marriages, sometimes immediately, (11) and otherwise after living together for two years or having a child, (12) and when the status of illegitimacy has been abolished. (13) It may be that one reason for this is that the policy arguments for revisiting the strict view, given the modern treatment of de facto relationships as equivalent to marriages, have not been run.
This issue is of particular importance in a multicultural society in which there may be quite different cultural understandings of the significance of marriage and in which for some, divorce is quite shameful, particularly for women. (14) To the secular mind, it may hardly seem worth the effort and expense of seeking a decree of nullity, when divorce is so easily obtained. Yet for those with strong cultural and religious values about the permanence of marriage, divorce may be seen quite differently.
The purpose of this article is to review the line of cases on being tricked into marriage. It is argued that some at least are wrongly decided as a matter of statutory interpretation. A further reason for reconsidering the correctness of this line of cases is that as a consequence of the enactment of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth) ('Crimes Amendment (Slavery) Act'), Parliament has now made it a criminal offence to trick someone into marriage. If it is now an offence to induce a person to enter into a marriage by deception, and such deception is treated as negating consent, it would be anomalous to hold that the marriage remains valid, notwithstanding that fraudulently-induced consent. Given that the law of nullity is enshrined in a statute, it ought as far as possible to be interpreted consistently with the rest of statutory law. That does not require amendments to the Marriage Act itself. All that is needed is to revisit the courts' interpretation of the word 'fraud'. The statute itself does not require the very strict view that the courts have adopted.
II NULLITY, CANON LAW AND THE INDISSOLUBILITY OF MARRIAGE
One of the problems with this area of law is that diverse kinds of cases are treated as if they are all governed by the same principles--that is, that neither fraud inducing consent nor shared mental reservations about marriage are sufficient to ground a decree of nullity. Yet the distinctions between cases are very important. There is a fundamental difference between a situation where one party tricks the other into believing that he or she intends to live with that person on a continuing basis, and a sham marriage case where neither intends to form a continuing relationship. There are also differences between cases involving fraudulent misrepresentation and improper concealment of material facts. Furthermore, there may be a material difference between fraud as to attributes and fraud as to the intention to form a consortium vitae. (15) Yet all these, and other cases, are treated as if they give rise to the same issues.
The leading cases on fraud in procuring a marriage were determined at a time when a divorce could only be obtained by an Act of Parliament. (16) A classic statement of the law in the first half of the 19th century is by the Privy Council in Swift v Kelly ('Swift'). (17) The Court said:
It should seem, indeed, to be the general law of all countries, as it certainly is of England, that unless there be some positive provision of statute law, requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon false representations, and that but for such contrivances, consent never would have been obtained. Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made. (18) It remains an oft-quoted authority on the law of nullity. This was not, however, a case where either party was tricked into marriage. Rather, the two young lovers entered into a marriage in Rome in circumstances where the young woman, a minor, had been refused parental consent for her marriage. The alleged fraud involved a convenient conversion to Catholicism for the sole purpose of being eligible to be married by a Catholic priest. As the parties were Anglicans, the lack of parental consent for the marriage of a minor would have been an insuperable obstacle. After her mother was told of the clandestine marriage, the young woman repudiated it. The alleged fraud was in the false rejection of her Protestant beliefs, and thus a fraud on the Catholic Church, not on the husband. (19)
The strict approach to the law of nullity was understandable when the public policy of the day precluded divorce. Yet even after a law of divorce was introduced in England by the Matrimonial Causes Act 1857, (20) the bonds of matrimony continued to be very hard to escape. The right to divorce was limited, and the law of nullity continued to be strictly policed to avoid it becoming a basis for de facto divorce. The strict approach to nullity may also have been influenced by concerns about causing a child to be illegitimate if the marriage was void (which carried significant legal consequences for the child) or unsettling property rights flowing from marriage. None of these concerns exist in the state of the current law.
The leading authority in England is Moss v Moss ('Moss') decided in 1897. (21) It has been cited regularly in Australia. (22) In this case, Sir Francis Jeune refused to accept the notion that fraudulent misrepresentations that induce...