IN THE HIGH COURT OF FIJI
AT SUVA
FAMILY DIVISION

ORIGINAL JURISDICTION
PRINCIPAL RELIEF

File No 0755/2008S

IN THE MATTER of an Application for Nullity of Marriage Under Section 32 of the Family Law Act 2003

L K
Joint Applicant

AND:

J V R
Joint Applicant

Appearances:

Joint Applicant -Ms K in Person 
Joint Applicant - Mr R in Person

Dates of Hearing: 14 January 2009, 12 February 2009
Date of Judgment: 16 February 2009

JUDGMENT

Section 32(2)(d) Family Law Act 2003 - ‘no real consent given’; Parties living in de facto relationship prior to civil marriage; Contention that marriage entered into for immigration purposes; Meaning of ‘fraud’ in nullity; Civil not criminal law principles applicable; Civil standard of proof applies; No Hyde v. Hyde commitment 

AB and MAM (File No. 0595/2008S, 29 September 2008)
AD and KST (Case No. 0798/SUV/2007, 27 March 2008)
APS and DAS (Family Case No. 0883/07, 14 January 2008)
Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)
Deniz and Deniz (1977) FLC ¶90-252
FNB and NAM (CasNo HBM 20/08L, 23 June 2008)
Hyde v. Hyde and Woodmansee (1866) L.R. 1 P&D 130 (20 March 1866)
KN and EG (CasNo 0029/2008S, 6 May 2008)
In the Marriage of Nemer Osman Husband and Oula Mourrali Wife Suit [1998] FamCA 78 (17 November 1989)
MI and TTN (HBM 37/07L, Family Case No. 456/2007, 28 February 2008)
MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008)
Moss v. Moss (Otherwise Archer) [1897] P. 263
NJ v. NK (Civil Action No. HBM 5 of 2007)
NM and DR (CasNo 0008/LTK/2008, 14 April 2008)
RD and MAK (HBM No. 39 of 2007, 25 January 2008)
RP and SAL (CasNo 08/SUV/0491, 19 August 2008)
RRS and AD (HBM 38/2007L; FamCas No. 07/TVA/0086, 5 August 2008)
RSK and KKK (File No. HBM 5/08L, 10 December 2008)
SN and ADR (File No 0439/2008; HBM58/2008L, 4 February 2009)
SN and MLN (HBM 49/2008L, 24 October 2008)

1.	Nullity Application & Jurisdiction

This application raises a novel question. The parties, L K and J V R, make joint application for nullity in relation to the marriage between them taking place on 6 July 2007 at Suva in the Republic of the Islands of Fiji. The ground stated in the application is ‘No real consent given’: s. 32(2) (d). The novelty arises in that prior to the civil marriage, Ms K and Mr R lived for some considerable time in a de facto relationship. A not insignificant question is whether this precludes them from succeeding in their application for nullity. In SN and ADR (File No 0439/2008; HBM58/2008L, 4 February 2009), that the parties lived in a de facto relationship prior to marriage was a factor in dismissal of the nullity application. The circumstances there were not identical with the circumstances of the present application. Whether this is sufficient to distinguish that case from this is a question addressed later.

1.1	Both Ms K and Mr R appeared at the hearing, giving evidence. The Marriage Certificate provided further material upon which the Court could rely. In addition, after the hearing Ms K provided, at the request of the Court, a printout from the High Commission of Aotearoa/New Zealand relating to applications made by her for entry to that country, for as it transpired from the evidence this was an issue relevant to the application. Subsequent to the Court’s receipt of this material, Ms K provided two (2) birth certificates with an explanation as to how it is that she is registered with the Office of Births Deaths and Marriages with different information relating to her given and family names and the details pertaining to her birth. 

1.2	As a consequence of this, the Court listed the application for further hearing, at which again both applicants appeared, providing further evidence.

2.	Evidence at the Hearing

In nullity applications, evidence is the key. This is because each case must be considered on its own merits and in accordance with its own circumstances. This is particularly the case where ‘no real consent’ involves contentions as to ‘duress’ or ‘fraud’. As has been observed by this Court in many applications, these terms need to be applied in accordance with civil standards, principles and precepts. In the past, ‘matrimonial offences’ and notions of fault and guilt as existing in dissolution/divorce appear to have had their parallels in nullity. As dissolution is now governed by the ‘no fault’ principle, nullity must be governed by a similar policy and philosophy. 

2.1	The Court would be bound to consider carefully evidence arising in any nullity application, whether or not the law had changed as it now has with the repeal of the Matrimonial Causes Act (Cap 51) and its replacement with the Family Law Act 2003. However, because the new legislation requires a building up of authority, there is even more need for the evidence to be canvassed to provide guidance and to make explicit the basis upon which a particular decision is made. It would clearly be extraordinary for this Court (or indeed any court) to make determinations that hang so explicitly upon the evidence, and to omit providing any recitation or outline of it. It is upon the evidence that the rationale for the application of section 32 – the nullity provision – must be based. The Court has a duty to make explicit the evidential basis for its determination.

2.2	(a)	Certificate of Marriage: The Certificate of Marriage records:

•	Ms K was born on 13 February 1983

•	Mr R was born on 19 March 1982

•	As at the date of the marriage, Ms K was 23 years of age and Mr R was 24 years

•	Ms K’s status and occupation are listed as ‘spinster’ and ‘domestic duties’

•	Mr R’s status and occupation appear as ‘bachelor’ and ‘fitter’

•	Both Mr R and Ms K were born at the AM Unit in Fiji

•	Place of residence appears for each as the same address in Tamavua, Suva

•	Fathers’ and mothers’ names for each party appear, as do the names of witnesses to the marriage being persons other than Ms K and Mr R’s parents

•	The name of the Marriage Officer appears together with his signature

•	The space for a Registration Number is blank, however, the stamp of the Registrar General Fiji appears on the Certificate

2.3	(b)	Evidence of Mr R: Mr R said the reason he married Ms K was ‘because I have to go to New Zealand’. Asked by the Court if he had gone to Aotearoa/New Zealand he responded:

No, I didn’t go to New Zealand.

2.4	He said that the marriage took place in Church before Pastor Koroi (Pastor Koroitamana N. Jedidiah). The witnesses were Mr R’s cousin/brother and Ms K’s niece. After the ceremony they ‘had lunch’, where there were four persons – Ms K, Mr R and the two witnesses. Then, said Mr R:

We went to our place at Walloku Village. My mother and father were living there and [Ms K] was living there too’.

2.5	Asked how the tasks were distributed in the household, Mr R said that Ms K did the washing of the clothes, the cooking and as for washing dishes, this was done by ‘my sister and [Ms K]’. 

2.6	Ms K and Mr R were ‘living together for 2 years before [they] married’, said Mr R, explaining that they then married because:

I was thinking of going to New Zealand as no one from my background has been going overseas. I didn’t go because it was hard to write the papers. I am not going so now I want a nullity.

2.7	Mr R said that he and Ms K had been ‘separated for four months. I have seen that I can’t go overseas so that’s why we separated’. He said that Ms K is now living elsewhere – no longer at the home of his parents.

2.8	Asked if they had been in a de facto relationship before they were married and when Ms K was staying with him at his parents’ home, Mr R said:

No. it was like a relationship but not serious.

2.9	Asked if they went drinking, dancing or to the pictures/cinema together, Mr R said that they ‘hardly drink’. As to parties, he said that Ms K and he went to birthday celebrations together. He said, however, that they did not buy anything together – such as sheets, blankets and so on before or after the marriage. He said he did ‘not give presents to her, but she gave presents to me’. He said that Ms K was not in paid employment when she was living with him and his parents. He had a job and his money ‘went on food’ for the household. Ms K ‘ate some of that’. In addition to food, his money went on electricity and phone bills and other accounts. 

2.10	Mr R said that Ms K’s mother ‘is staying in the United States and she [mother] sends her [Ms K] money. She would buy our clothes and other necessaries from that money.

2.11	Asked whether, after they married, anything changed in their relationship, Mr R said it ‘remained the same’. They ‘slept in the same bedroom’ before the marriage and slept in the same bedroom after the marriage. Asked whether they had discussed having children, Mr R said ‘yes, we talked about having children. She had two miscarriages’. This was no different before or after the marriage.

2.12	(c)	Ms K’s Evidence: Ms K said:

I got married because all my family are overseas and I wanted to go overseas. He [Mr Rawaya] thought if we got married it would be easier for him to go overseas but I didn’t know it would be like this. I didn’t know that we wouldn’t go and now I want to go to my family in New Zealand or Australia or the US. All my family is overseas.

2.13	She told the Court an application had been lodged with the Aotearoa/New Zealand High Commission, but had been rejected. When asked by the Court, Ms K said that as far as she knew the application did not say how she and Mr R could improve their chances to be accepted by Aotearoa/New Zealand. 

2.14	Ms K said that after the rejection of their application, Mr R had severed his relationship with her. They have been separated now for seven months, she said – from May/June 2008. She said that Mr R had calculated incorrectly in his estimate of the relationship having been ended for four months. Ms K said:

He left me. He asked me to leave the house. He wanted to go to Nadi to work. He told me not to go with him. He went. 

2.15	Three months later, said Ms K, she moved out of his parent’s house to another house in the village.

2.16	Ms K said that she has decided after this Court case is over to go to Aotearoa/New Zealand as she has a sister and one brother there. They have said they will sponsor her to Aotearoa/New Zealand. She said:

We got married because he wanted to go to New Zealand. He did not marry because of love but because he was going to New Zealand.

2.17	Asked by the Court whether her relations had any influence or part to play in the marriage between her and Mr R, Ms K said:

Yes. It was important to him that my sister and brother were in New Zealand. None of them [Mr R’s family] had been overseas. After the marriage he told me that when we reach New Zealand he with get divorced there and then he will support his family in Fiji.

2.18	Ms K said that when she lived with Mr R at his parents’ house, she did all the housework both before and after the marriage. She said that before and after they were married, she and Mr R attended films, birthday parties and sometimes went out together to them. She bought clothes for him and herself, bought food and paid for electricity and gas bills, telephone and water bills. She said that Mr R and she shared the same bedroom before and after the marriage. 

2.19	(d)	Aotearoa/New Zealand Immigration Documents: After the hearing concluded, the Court considered the immigration aspect of the application, concluding that the documents the parties completed for their application to emigrate to Aotearoa/New Zealand and the response and refusal of the Aotearoa/New Zealand immigration authorities would be of assistance. The parties were contacted individually at their respective telephone numbers by Court Administration, however, each said s/he did not have a copy of the documentation. The Senior Court Officer then wrote to the Aotearoa/New Zealand High Commission requesting a copy.

2.20	Ms K hand-delivered a copy of the Senior Court Officer’s letter to the High Commission, asking for a copy of the immigration documents. These are now on the Court file, indicating that she had made application for entry to Aotearoa/New Zealand on several occasions during the 1990s – 16 February 1998, 26 February 1998 and 2 October 1998. The letter from Immigration New Zealand advises that these three ‘physical applications’ have been destroy, but a printout of the electronic records is enclosed. The letter further advises:

Certain information is being withheld in reliance on section 18(e): the information no longer exists. 

2.21	It is not clear as to where section 18(e) is located, however, it appears to be either in the Immigration Act or the Freedom of Information Act. In any event, Ms K is told she may contest the decision to withhold information by seeking an investigation and review of the decision by the Ombudsman. 

2.22	(e)	Further Evidence from the Joint Applicants: The parties attended to give further evidence as to the immigration aspect and the dates of their living together and parting. Mr R said that he did not follow up the application made to the Aotearoa/New Zealand High Commission. He said that he and Ms K had come to live together in at his parents’ home because she ‘was pushing to go overseas’ and had no relatives in Fiji. He reiterated that he had married her because he wanted to go overseas and believed that this was the way he could do that – because of her relatives overseas: it was necessary to have sponsorship. 

2.23	Ms K said that her sister-in-law in Aotearoa/New Zealand was supposed to sponsor her and Mr R to go to there and this meant they had to wait for the outcome from the Embassy. She said:

We were waiting for the sponsorship of my sister-in-law and she came to Fiji in April 2008 and we were waiting for her to follow up the application. Then when she left in May/June 2008 we found out that she had sponsored her own children instead of us. 

2.24	It was on 26 June 2008, said Ms K, that her sister-in-law left Fiji. She said that it was before that, at the end of May or in June, that she and Mr R found out that the sister-in-law was not intending to sponsor them, but had used her sponsorship for her own children. When Mr R discovered this, she said, he told her to leave his parents house and that he was going for a job in Nadi and did not want her to go with him. It was at that time that he told her he had married her only to gain sponsorship to Aotearoa/New Zealand through her relatives. He did not want to marry her and had intended to divorce her when they arrived in Aotearoa/New Zealand so that he could send his earnings to his family in Fiji.

3.	Nullity Under the Family Law Act – Preliminary

Section 32 of the Family Law Act 2003, in governing nullity and as relevant to the present application, says:
Nullity of marriage

32. -	

(1)	An application under this Act for an order of nullity of marriage must be based on the ground that the marriage is void.

(2)	A marriage that takes place after the commencement of this Act is void if –

(a)	…;

(b)	…;

(c)	…;

(d)	The consent thereto 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; or

(e)	…; 

and not otherwise.

3.1	In the present case, there was no question of any impediment of the capacity to consent by reason of mistake as to identity or the nature of the ceremony, nor as to mental capacity. There was no question of lack of consent by reason of duress. The sole question for consideration by this Court is whether, in all the circumstances as indicated by the evidence, consent was procured by ‘fraud’ within the meaning of section 32(2)(d)(i).

4.	‘Fraud’ under the Family Law Act - Evidence & Outcome

Turning then to the application insofar as ‘fraud’ in the Family Law Act nullity provisions may apply, a number of issues arise as to the meaning and interpretation of ‘fraud’ under section 32(2)(d)(i).

4.1	(a)	The Issues: The question here is whether:

•	The evidence provided by Ms K and/or Mr R as to the circumstance that Mr R is said by Ms K (and himself) to have married Ms K in order to gain entry to Aotearoa/New Zealand for immigration purposes – he wished to be able to live there with an immigration status which would enable him to engage in paid employment and to send monies back to his family in Fiji is credible;

•	If credible, that evidence can substantiate fraud on the part of Mr R on the balance of probabilities – that is, the civil standard as required under the Family Law Act; and

•	If it does, is this sufficient or adequate or the ‘proper’ type of fraud to found a claim of no real consent on the basis of ‘fraud’ under section 32(2)(d)(i) of the Family Law Act.

4.2	There is an additional question: if all the above were found in favour of the application, whilst it is also found that as at the date of the marriage Ms K and Mr R were living in a de facto relationship, does this impact upon the determination so as to exclude the application from grant of nullity, to bring it within the grant of nullity, or to have a neutral or no effect upon the contention that fraud vitiates consent?
.
4.3	(b)	‘Fraud’ under the Family Law Act: ‘Fraud’ in the Family Law Act is not criminal fraud. The Family Law Act is a civil law, and any interpretation and application of ‘fraud’ in section 32(2)(d)(i) must be by reference to civil law standards, principles and precepts, with the civil standard of proof applied. 

4.4	As pointed out by this Court on a number of occasions in nullity applications, importing criminal or quasi-criminal standards into family law recalls ‘fault’ and ‘guilt’ in divorce law. These no longer have any place in Fiji law and their importation or any underlying influence is not consistent with what is said in and intended by the Family Law Act. ‘Matrimonial "offences"’ no longer exist in dissolution. Hence, they and the analysis and thinking accompanying them has no place in nullity applications. Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938), too readily referred to in looking at the standard of proof in many arenas, was decided by reference to ‘fault’ and ‘guilt’ as central to divorce or dissolution under matrimonial law of the time. That the High Court there was dealing with an allegation of adultery which in the 1930s both in law and in social interaction was condemned must be taken into account before having recourse to the decision in the present day – namely, the 21st century. It may be considered regrettable that some jurisdictions – for example, the United Kingdom and Australia - where no-fault divorce or dissolution is established do not appear to recognise that this fundamental change and fundamental difference between the ‘then’ (Briginshaw v. Briginshaw era) and now (no fault divorce/dissolution) should be taken into account for nullity applications also. 

4.5	The Court must focus on the circumstances of the particular application and an analysis of the law in its possible application to them. Unreflective concentration upon authorities from past centuries is unhelpful. There has been a tendency to rely upon decisions which were made in different times, when matrimonial law was infused with ‘guilt’ and ‘fault’, and ‘matrimonial offences’ with their attendant complications governed courts’ determinations. Elsewhere, Moss v. Moss (Otherwise Archer) [1897] P. 263, a United Kingdom case, continues to have an impact and even to dictate the way in which ‘fraud’ in nullity should be interpreted in the 21st century. This overlooks the fact that at that time, the law was different. Social dictates and demands were different. Laws governing not only dissolution, but legitimacy, matrimonial property, the rights of women and children were different from now. International treaties and conventions setting down universal standards of human rights and women’s rights, and emphasising rights and freedoms in the determination to marry or not to marry did not exist. 

4.6	The Constitution requires courts in Fiji to be attuned to human rights and to ‘social and cultural developments’ particularly those ‘in the understanding of the content of particular human rights’ and ‘those in the ‘promotion of particular human rights’: s. 3(b) The Family Law Act 2003 makes specific reference to such international standards, referring in section 26 to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women.

4.7	(c)	Fraud & Decisions of this Court: Certainly, authorities from elsewhere may be helpful. However, this Court must be attuned to the wish of the Parliament in passing the Family Law Act and to the realities of 21st century Fiji, along with the impact of international treaties and conventions and notions of human rights and freedoms that are embodied in the law of Fiji through the Constitution and general law. This Court has endeavoured to do this in nullity applications were duress and fraud are raised – see for example AD and KST (Case No. 0798/SUV/2007, 27 March 2008); APS and DAS (Family Case No. 0883/07, 14 January 2008); AB and MAM (File No. 0595/2008S, 29 September 2008); FNB and NAM (CasNo HBM 20/08L, 23 June 2008); KN and EG (CasNo 0029/2008S, 6 May 2008); RP and SAL (CasNo 08/SUV/0491, 19 August 2008); MI and TTN (HBM 37/07L, Family Case No. 456/2007, 28 February 2008); RD and MAK (HBM No. 39 of 2007, 25 January 2008); RRS and AD (HBM 38/2007L; FamCas No. 07/TVA/0086, 5 August 2008); NJ v. NK (Civil Action No. HBM 5 of 2007); and see also NM and DR (CasNo 0008/LTK/2008, 14 April 2008); SN and MLN (HBM 49/2008L, 24 October 2008)

4.8 	Fraud has been accepted as vitiating consent where:

•	prior to marriage, impotence or infertility has been concealed from a spouse, dashing parties’ expectations as to what are generally accepted or seen as fundamental to marriage, namely including children born into the family through natural means: KN and EG (CasNo 0029/2008, 6 May 2008); NM and DR (CasNo 0008/LTK/2008, 14 April 2008) 

•	(in)capacity to engage fully in sexual relations has been concealed prior to marriage, again interfering with generally accepted notions of what is fundamental to marriage; KN and EG (CasNo 0029/2008, 6 May 2008); NM and DR (CasNo 0008/LTK/2008, 14 April 2008)

•	before the civil ceremony, representations have been made, or expectations have been engendered consistent with religion, cultural beliefs and traditions that a religious, traditional or ‘ritual’ wedding ceremony will follow (whether immediately or some time after) the civil ceremony, then this promise, representation or expectation is reneged upon: RSK and KKK (File No. HBM 5/08L, 10 December 2008)

•	one party has ‘used’ the other party to gain an immigration status, whether the obtaining of a visa or permanent residence, etc by going through what ultimately is revealed to the other as a ‘sham’ marriage on the part of the party ‘using’ the other: MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008)

4.9	The present application raises fraud in respect of a desire to gain a particular immigration status. It is not as clear-cut as MK and NJ, which was an arranged marriage, one party living in Australia, the other in Fiji. The parties had not known one another before the marriage, did not live together after the civil marriage, and albeit they went through a religious marriage they did not engage in sexual relations and the short time they ‘shared’ a residence, the male partner (who brought the application) was not ‘allowed’ by the female partner to engage in any intimacies with her, was ‘banned’ from the main bedroom and required to sleep on a couch, was required to purchase takeaway meals that were not a part of any sharing or community between the parties.

4.10	In the present case, the parties live in Fiji, they have lived in a shared household for a not insignificant period, engaging in mutual financial support, attending functions together, and generally conducting their lives as a ‘married’ couple. 

4.11	In MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008), this Court said:

Insofar as immigration fraud is in issue, if this is revealed early after the marriage, then nullity may apply. However, again, if the marriage subsists for any length of time without the ‘sham’ nature of the marriage having been revealed, or after it has been revealed but the parties stay together for some time despite this, dissolution is more likely to be accepted by the Court as the appropriate ending of a marriage rather than nullity: at para [4.9]

4.12	However, the Court at that time did not have before it a case in the nature of the present, where the parties were living in a de facto relationship, then married, and consequently it became known to one of the parties that the other had married only for the purpose of securing entry into another country, by:

•	Using the marriage status; and

•	Using the partner’s family status – that is, her having relatives in the country to which the partner wished to gain entry, which would provide sponsorship that otherwise could not be secured.

4.13	(d)	Fraud & Authorities: The Australian authorities are not consistent. The predominant view is, however, that ‘fraud’ has a restrictive meaning: MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008) This appears at least to be partially founded in the notion that otherwise, the ‘floodgates’ will be opened: In the Marriage of Nemer Osman Husband and Oula Mourrali Wife Suit [1998] FamCA 78 (17 November 1989); contra Deniz and Deniz (1977) FLC ¶90-252 However, the floodgates argument is never persuasive. If it were the case that the Court would be inundated with spurious claims, then the Court could deal with them accordingly. Generally, however, where ‘floodgates’ are predicted, the prediction comes to nothing. 

4.14	The appointment of Judges to the family jurisdiction is predicated upon their having qualifications and qualities making them well-suited to handle family matters. Judges should be able to sort out the spurious from the real. After all, this surely can occur not only in nullity applications. In any event, genuine claims should not be resisted or shut out, simply because courts consider that amongst the genuine there may be the not-so-genuine. 

4.15	(e)	‘Fraud’ in the Present Application: Here, fraud going to one of the fundamentals of marriage is not claimed. Rather, the evidence is that Mr R married Ms K in order to secure entry to Aotearoa/New Zealand and to effect an immigrant status enabling him to live and engage in paid work there. This would mean, in turn, he could send monies back to his family in Fiji. It would also make him the first of his family to travel and live abroad. 

4.16	Mr R was, in this regard, in a very different position from that of Ms K. Her family lives abroad; her evidence was that all her (close) relatives live outside Fiji. Mr R’s evidence was that Ms K’s mother lives in the US. Ms K’s evidence was that a brother and sister live in Aotearoa/New Zealand who are ready to sponsor her as a migrant to that country. 

4.17	Further, once it became known to Mr R that he would not, through his marriage to Ms K, secure entry to Aotearoa/New Zealand – because the sponsor (Ms K’s sister-in-law) sponsored her own children – he ended the marriage. He told Ms K to leave the house of his parents and told her not to go with him or follow him to Nadi, where he secured a job.

4.18	It is apparent from the evidence that:

•	The parties were living in a de facto relationship;

•	That relationship had continued for some time;

•	The parties married – as it transpired, solely because Mr R –

o	Wanted to live abroad as none of his family had ever done so;

o	Wanted to go to Aotearoa/New Zealand to secure a job so that he could send monies back to his family in Fiji;

o	Needed sponsorship to do this;

o	Had no sponsorship prospect of his own, through having no family members living abroad;

o	Knew that Ms K had family members living abroad;

o	Believed he had the prospect of gaining entry to Aotearoa/New Zealand through sponsorship by Ms K’s relatives;

o	Knew that in order to regularise sponsorship for himself through Ms K’s relative/s, he would have to be in a legal marital status with her;

•	As soon as Mr R learned that there would be no sponsorship for him because Ms K’s sister-in-law had sponsored others, he ended the relationship.

4.19	It is further apparent that Ms K had no warning or knowledge of this subterfuge on the part of Mr R. The way she gave her evidence, her demeanour in Court and in the witness box, indicated this. Her evidence also had a greater clarity than Mr R’s and she was the more dependable witness. Her recitation of dates and events is accepted by the Court as the more accurate.

4.20	Insofar as ‘fraud’ is concerned, therefore:

o	Mr R misrepresented to Ms K the basis upon which he was marrying her;

o	Mr R represented to Ms K that the marriage he contracted with her was a genuine marriage relationship with a commitment for life;

o	Mr R’s presentations were untrue;

o	Mr R’s purpose in marrying Ms K was founded in his desire to emigrate and make a life in another country;

o	Mr R did not inform her of this, until he learned that he would not, through the marriage to Ms K, secure the emigration status he desired;

o	The purpose of the marriage insofar as Mr R was concerned failing to come to fruition, Mr R ended the marriage.

4.21	Upon the authority of MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008), had the parties not lived in a de facto relationship prior to the marriage, the nullity would be granted. What impact then does the de facto relationship have?

4.22	In SN and ADR (File No 0439/2008; HBM58/2008L, 4 February 2009) as noted, a nullity application was rejected where parties were living in a de facto relationship. The circumstances there were, however, different from those here. Mr SN claimed ‘fraud’ in that Ms ADR had not disclosed to him prior to marriage that she had been married previously, had lived also in a relationship with a second man (though not married to him) and had borne three children – two in the marriage, one in the second relationship. They had lived together for some time before marriage, and it was some two months after marriage that she disclosed these matters to him. This she did by taking him to a school, pointing out the three children, and telling him that they were hers: she then told him of the prior marriage and relationship. More than a month later, Mr SN made application for nullity.

4.23	In SN and ADR the matters put forward as ‘fraud’ were different from that advanced in the present case. As noted, the ‘fraud’ claimed here is akin to that advanced in MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008). The parties had lived without the benefit of matrimony, then married because Mr SN gained a position which meant it was preferable for them to be married. The evidence was that the concealment continued throughout the de facto relationship and then into the married relationship until Ms ADR disclosed it. The marriage nonetheless continued for at least a month before the nullity application was made. The breakdown was on all fours with marital breakdowns which are a precursor to divorce. 

4.24	The reason for marriage in the present case was, on the part of Mr R, that he wanted to gain entry to Aotearoa/New Zealand, gain permanent residency status, obtain paid employment and send moneys back home to his family, none of whom had been out of Fiji. Ms K was led to believe it was a ‘true’ marriage. In SN and ADR, Mr SN married because it was to his advantage to do so. It meant he and Ms ADR ‘could hold themselves out as a married couple, rather than in a de facto relationship’ for the purpose of his new position. The fraud he claimed was on the part of Ms ADR as to prior marriage, a relationship, and children. In SN and ADR the Court said:

… they held themselves out to be married persons, living in a marital relationship in Rakiraki from 18 July 2008 through August 2008 and into September until Mr [SN] had revealed to him Ms [ADR]’s ‘true’ former status and present status as mother of three children.

The Court accepts that this will have come as a shock to Mr [SN] – although it is also clear from his evidence that he had a suspicion arising out of Ms [ADR]’s keeping from him all her documents and not allowing him to see the Marriage Certificate (which revealed her status as ‘divorcee’). The issue in the grant of a nullity application is not, however, whether a party has suffered shock in consequence of a revelation of some concealed matter or matters. Rather, it is a question whether the terms of the Family Law Act are met in section 32. Here:

•	have factors operated to bring about consent to the marriage by reason of fraud (or duress); and

•	did no ‘real’ marriage exist or come into existence; or 

•	whether a ‘real’ marriage came into being that ultimately broke down because of a revelation (such as here).

In Wiseman v. Wiseman (1953) P. 879 – not a nullity application but one to set aside a final decree of divorce/dissolution - the words of Denning, LJ have some resonance in the present application:

… every woman, when she marries, takes her husband on trust to some extent. If she marries a man who describes himself as a bachelor she takes him on trust that he is not a married man. If she marries a man who says … he has divorced his wife, she takes him on trust that he has obtained the divorce properly. If her trust turns out to be misplaced, it is a misfortune which many women have suffered before her, but it is not unjust: at 92-93

Similarly for every man – when he marries, he takes his wife on trust to some extent. If he marries a woman who describes herself as a spinster he takes her on trust that she is not a married (or divorced) woman … If his trust turns out to be misplaced, it is a misfortune men may have suffered before him, but taking into account all the circumstances may not be unjust within the meaning of nullity law. In all the circumstances it may, however, be a ground for divorce or dissolution, in that if by reason of the deception it leads to irretrievable breakdown then if that irretrievable breakdown subsists for twelve months or more, dissolution will follow: at paras [4.27]-[4.30]

4.25	In the present case, there was no marital breakdown as required for dissolution. Rather, the separation of the parties was instantaneous upon Mr R’s learning that his purpose in marrying Ms K was undone: its not having been achieved, he immediately told her to go, removed himself to Nadi, and told her not to follow him.

4.26	In these circumstances, it seems to me that the de facto relationship should not stand in the way of a recognition by this Court that the marriage Ms K contracted with Mr R was a marriage contracted by fraud, and that Ms K’s consent to the marriage was secured by fraud – the misrepresentations and purposes stated above. That the parties lived in a de facto relationship does not alter the circumstances of the marriage in terms of the representations and misrepresentations made by Mr R and the fact that Ms K entered what she believed to be a genuine marriage, which as it transpired was not.

4.27	Indeed, in one sense the de facto relationship is irrelevant – for it cannot undercut the reality of the misrepresentation made to Ms K which brought about her consent to the marriage – that is, that it was a genuine marriage. The very nature of a de facto relationship is that it is not a legal marriage – the parties were not living in a legal marriage for a lengthy period, with the fraud then coming to light and the parties now seeking a nullity. Rather:

o	They were living in a de facto relationship;

o	They had no reason to marry – apart from

o	the belief on Ms K’s part that Mr R was ready to commit to a legal marital relationship ‘for life’; and

o	the wish on Mr R’s part (undisclosed and indeed concealed from Ms K) to use the legal marriage as a means of securing entry as a migrant to Aotearoa/New Zealand and to secure permanent residency status there.

4.28	Without the deceptive conduct of Mr R and his wish vis-à-vis migration, they would not have contracted the legal marriage, for Mr R’s evidence makes clear his wish to marry for one purpose only – migration; he had all the other appurtenances of marriage in any event. The evidence confirms that Mr R had no commitment to marriage in the way it is traditionally see in the law:

Marriage as understood … is the voluntary union for life of one man and one woman, to the exclusion of all others: Hyde v. Hyde and Woodmansee (1866) L.R. 1 P&D 130 (20 March 1866)

4.29	He stated to Ms K, and his evidence was, that he had married her only because of his wishes to emigrate.

4.30	Upon that basis, it seems to me, the ‘fraud’ provision of section 32(2)(d)(i) applies, and the application should be granted. The marriage is a nullity and should be declared void.

DECLARATION AND ORDERS

A declaration and orders are made as follows:

1.	The application for nullity is granted.

2.	The marriage of L K and J V R taking place in the Republic of the Fiji Islands at Suva on 6 July 2007 is declared void. 

3.	The marriage is hereby annulled.

4.	No order as to costs.

JUSTICE JOCELYNNE A. SCUTT

Suva 
16 February 2009