International family disputes

Australian Family Law cases discussing the Pakistani, Indian, Sri Lankan and Nepalian Laws

This article very briefly discusses cases decided by Australian Family Court where the marriage certificates or divorce certificates were in issue.

This is general limited information for the community awareness and not a legal advice or comment on any legal issue.

Pakistani case

In MAIDER & CARRIGAN [2008] FamCA 862, the wife initiated divorce proceedings in the Family Court of Australia.

The husband defended the proceedings and claimed that the marriage had already dissolved pursuant to a divorce certificate issued in Pakistan.

The wife denied that she ever requested the divorce. The evidence called into question whether she was ever aware of the Talaq pronounced in the Deed purportedly executed in Pakistan, prior to her initiating the proceedings for the divorce in Australia.

The husband claimed that a Divorce Deed was signed and registered with the local authority.

The crucial issue before the Australian court was whether the divorce made in Pakistan as claimed by the husband was in accordance with the Pakistani law, as required by section 104(3) of Family Law Act 1975 (Cth).

The Australian court required to be satisfied about the requirements of a valid divorce as per Pakistani law.

The Court arranged for the expert witnesses of both parties to give evidence by telephone link. But only the expert witness produced by the wife, Sheikh Sulaman, was available for cross examination.

The witness made clear distinction between the Islamic (or religious law) and the civil law of Pakistan. Under cross-examination he maintained his views about the lack of validity of any alleged Pakistani divorce according to the appropriate law of Pakistan, which he said was the civil family law and not the Islamic law.

The court dismissed the husband’s defence and proceeded with the matter in accordance with Australian family law.

Sri Lanka’s case

Death of first husband proved false, the second marriage declared null and void:

In WEEKES & WEEKES, pseudonym, [2009] FamCA 699, the Family Court of Australia considered the Sri Lankan marriage law and declared that the second marriage of the wife purportedly held in Colombo Sri Lanka was null and void according to the Australian law.

The parties married in Colombo, Sri Lanka. The wife was a Sri Lankan residing in Sri Lanka and the husband was an Australian citizen.

At the time of marriage, the wife claimed that she was a widow and her husband had died.

After marriage, the husband flew back to Australia and the wife joined him subsequently after completion of partner visa process.

Later, in Australia, the wife moved divorce application. In response the husband made a fresh initiating application seeking order that the marriage was null and void.

The husband claimed that at the time of their marriage the first husband of the wife was alive.

The wife defended the application of the husband and claimed that her marriage with the first husband dissolved after divorce proceeding in Sri Lanka.

The Australian Family Court considered the official documents issued by different Nepalian government institutions.

The Australian High Commission in Colombo informed that the death certificate provided by the wife was bogus.

The Department of Border Protection and Immigration conducted an enquiry and cancelled the partner visa of the wife. The immigration department made a report.

The Court treated the report from the Department of Immigration as a crucial evidence to establish the primary relevant factors.

The report stated that the evidence held on the visa holder’s files confirmed that the visa holder’s first husband was alive, and the death certificate submitted with her spouse application was bogus.

The Immigration Department’s report also commented on the self-contradictory claims of Ms Weakes. On the one hand she claimed that she was divorced and on the other hand in her visa application she claimed she was a widow.

There was no sense to make a divorce application after death of the husband.

The Family Court concluded that the wife suppressed the fact that her first husband was alive and the at the time of marriage of the parties the first marriage of the wife did exist.

The court applied Section 23B(1)(a) of the Marriage Act 1961 (Cth) and cited a number of reported cases and concluded that;

“A marriage where one person is already married to another person at the time of the marriage is void as it is bigamous.”

The Court further noted that it does not matter that either party is aware that there is a lawful marriage already in existence. Knowledge and intent may be relevant to criminal proceedings for bigamy, but all that the Court has to be satisfied about is that when the second marriage ceremony took place, one of the parties was lawfully married to some other person. This applies even where a marriage takes place after decree nisi but before there is a decree absolute.”

The Court declared that the marriage solemnised in Colombo, Sri Lank between Mr Weekes and Ms Weekes was absolutely null and void.

Nepal case

A person married in Nepal cannot remarry in Australia

In a recently decided case, PEREIRA & GANGUMI, pseudonym, [2019] FamCA 121, the issue before the court was validity of a marriage purported to be solemnised in Australia. The couple had a child out of this marriage.

The court did not disbelieve the solemnisation of the marriage but concluded that under section 23B of the Marriage Act 1961 (Cth) the alleged Australian marriage was null and void because of pre-existing Nepalian marriage.

Some years before the Australian marriage the Husband married Ms Tani, pseudonym, in Nepal.

A copy of the Marriage Registration Certificate issued by Department of Civil Registration, Ministry of Federal Affairs and Local Development; Nepal was available on the cord.

In 2010 the husband Peirera and Ms Tani separated.

The husband claimed that his marriage with Ms Tani dissolved and subsequently the divorce certificate was also issued by Government of Nepal.

Mr Peirera as husband applied partner visa for Ms Gangumi. The visa application was based on the claim that he married Ms Gangumi after he was divorced by Ms Tani.

Mr Peirera relied upon the divorce certificate issued by Government of Nepal.

The Department of Immigration and Border Protection in their enquiry found that divorce certificate of the marriage of Mr Pereira and Ms Tani was false.

The department confirmed the information from the local Metropolitan Office in Nepal that the Divorce Registration Certificate about the divorce of Mr Peirera and Ms Tani, is a fraudulent document.

The court concluded that the purported marriage of Mr Pereira and Ms Ganumi solemnised in in Australia was void because at that time the marriage of Mr Pereira and Ms Tani held in Nepal existed.

Indian case

In Talwar & Sarai, pseudonym, [2018] FamCAFC 152 the Appeal Court set aside the divorce order made by the Family Court in Australia. The case addressed almost all issues in the family disputes of Indian community in Australia.

The parties married in India, in 2013, under Hindu Marriage Act 1955 (India). The husband was an Australian citizen.

In September 2013, the wife completed her partner visa application. In December 2013, the husband withdrew the sponsorship required for the partner visa.

In March 2017, the husband filed divorce application in Australia. The wife was in India.

Initially, the Court was not satisfied that the wife was duly served with the notice of the application but finally the Court was satisfied that the Court notice was served on the wife.

The wife did not file any response and the Court in May 2017 allowed the divorce application.

On the other hand, the wife, in April 2017, filed an application in Family Court of India seeking a declaration that the divorce order made by the Australian court is null and void.

In July 2017, an Indian Metropolitan Court (Mahila Court) granted interim maintenance to the wife. The husband participated in these proceedings through his Indian lawyer.

In India, the wife and her parents instituted further proceedings related to the marital dispute. The proceedings included complaint under section 498 A of the Indian Penal Code, Dowry Prohibition Act 1961 and the Protection of Women from Domestic Violence Act 2005.

Australian appeal court did not agree with the decision of the primary judge and remitted the matter back to the primary judge for rehearing.

Originally published on 14 February 2021 at LinkedIn.

Basharat Ahmad Jatt

Barrister & Solicitor

Principal

Jatt Lawyers

Melbourne, Australia


Disclaimer

This article is general information for the community and not legal advice. For legal advice please contact with particular facts of your case.

The author is an Australian Lawyer of Pakistani origin. Anyone looking for an Urdu, Punjabi, or Hindi speaking lawyer in Australia can confidently contact Jatt Lawyers.

Legal support for Australian Muslims for inheritance and family law issues in Australia is the common practice area of Jatt Lawyers.

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