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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
FAMILY DIVISION
ORIGINAL JURISDICTION
PRINCIPAL RELIEF
File No. 0064 of 2009
V D C
Joint Applicant
AND:
V N S
Joint Applicant
Appearances: Ms C in Person
Mr S in Person
Date of Hearing: 10 March 2009
Date of Judgment: 13 March 2009
JUDGMENT
Nullity; Jurisdiction – s. 24 Family Law Act 2003; Marriage not properly solemnized’ – s. 32(2)(c); ‘No real consent given’ – s. 32(2)(d)(i); ‘Fraud’ – s. 32(2)(d)(i); ‘Marriage’ under Family Law Act, s. 26; Civil marriage; Religious marriage – s. 36 Marriage Act (Cap xx); No force under Family Law Act; No ‘arranged marriage’; Religious marriage necessary for cohabitation; Undertaking as to religious marriage; Undertaking/Commitment to religious marriage renounced; No religious marriage; ‘Fraud’ under Family Law Act; No ‘marriage’ beyond formalities
AB and MAM (File No. 0595/2008S, 29 September 2008)
AD and PC (File No. HBM 54/08L, 24 October 2008)
ERC and LS (HBM 001/08; FamCas No. 07NAN 0486, 29 February 2008
FNB and NAM (CasNo HBM 20/08L, 23 June 2008)
KN and EG (CasNo HBM 20/08L, 23 June 2008)
MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008)
Narayan & Anor v. Sigamani and Ors [2008] FJHC 204; HBC059.2004 (5 September 2008)
Osborne v. Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228 (14 December 2001)
PPR and DRS (File No. HBM 50/08L, 16 December 2008)
1. MARRIAGE & NULLITY APPLICATION
V N S and V D C make joint application for nullity of the marriage between them taking place at Rewa in the Republic of the Fiji Islands on 21 May 2008. The application was filed on 2 February 2009 and the ground stated is ‘Marriage not properly solemnized’.
1.1 Both Ms C and Mr S are resident in Fiji and both are Fiji citizens. The Court has jurisdiction under section 24 of the Family Law Act 2003, as it provides that a person may institute proceedings for a matrimonial cause (including nullity) where:
2. EVIDENCE BEFORE THE COURT
Mr S appeared to give evidence at the hearing, as did Ms C. As well, Ms C’s father Mr H C and Mr S’s mother Ms K W came to the Court as witnesses. The Marriage Certificate was before the Court and hence provided additional evidence.
2.1 As neither Ms C nor Mr S was represented, the Court explained to them and (when they appeared to give evidence, their witnesses) that in the ordinary course their Counsel would have asked questions so that Ms C’s Counsel would have asked Mr S questions and Mr S’s Counsel would have asked Ms C questions. Hence, it was explained, the opportunity would be provided at the end of each witness and the parties for each party to ask questions of the other or witnesses, should they believe that questions remained to be asked and answered. As it transpired, neither wished to ask the other or the witnesses any questions.
2.2 (a) Certificate of Marriage: The Marriage Certificate attests to the following:
2.3 In addition, details of fathers’ and mothers’ names appear, together with witnesses to the marriage and the name of the Marriage Officer. The Registration Number of the Certificate of Marriage is 1043935 and the date of registration appears as 22 July 2008, together with the stamp of the Registrar General of Births, Deaths and Marriages and a signature.
2.4 (b) Ms C’s Evidence: Ms C said that prior to the marriage she knew Mr S as they were working together at the supermarket where each was employed, she as a payroll clerk. Mr S ‘proposed marriage’ she said. After talking with her parents, she said: ‘Yes.’ This happened in about October 2007. The delay between then and the date of the civil marriage was that her ‘mother-in-law wanted the legal marriage and made all the dates’. She and Mr S ‘continued working at’ the supermarket.
2.5 Asked whether she and Mr S went out together, she said ‘we went for movies and that’s it’.
2.6 As for the civil marriage ceremony:
My family members were all present. Afterwards we had some snacks and took some photos. This was at the H Krishna restaurant at Nausori. Then we went home. I went to my own home and they went in their own home.
2.7 Asked whether she and Mr S made plans to live together, she said they talked about how they would ‘have a good married life and future’ however they ‘did not really talk about having children’. They had no joint bank account and bought no furniture together or household goods. They did not decide on which house to live in together. Ms C said she did not live together with Mr S after the civil marriage.
2.8 Ms C said that after the civil marriage she and Mr S continued working together. On Sundays which was her day off she ‘stayed home’ and did not see Mr S. They ‘did not live together’. She said:
Before the religious marriage in our culture it is not necessary to stay together. The religious wedding was supposed to take place in December 2008. Everything was okay but then our legal marriage did not work out properly because everything was okay before the legal marriage. Then after the legal marriage he [Mr S] told me he can’t keep me happy after the [religious]] marriage. I told my parents. I talked to him [Mr S] again and he said the same thing – that he can’t keep me happy after the marriage. I told my parents. They said that if he says that then you should not continue [to do the religious marriage] as you are well-educated and can find many partners in life.
2.9 Asked why the application form stipulated ‘Marriage not properly solemnized’ as the ground for nullity, Ms C said:
The legal marriage did not work out properly. So I can’t stay with a person who is not giving me his life, so what is the point of staying with him.
I can’t be making my life spoiled like that and can find another person to share my life – so I can find a good partner for myself.
2.10 Asked further about the relationship she had with Mr S prior to the marriage, Ms C said:
Twice I went with him to the films before he asked me to marry him.
2.11 Asked why she had made application for the nullity, she said:
If I get the nullity I will be happy. I will get someone good. He [Mr S] told me that I can find any good partner for myself.
2.12 Asked about the religious marriage, Ms C said it had not gone ahead however Mr S ‘didn’t say why he would not do the religious marriage’.
2.13 (c) Evidence of Mr S: Mr S said he works at the same supermarket in Nausori as that at which Ms C worked. In about October 2007 he and Ms C became friendly. They were both working at the supermarket, and they went together to films. He said he ‘asked her to marry me in November, perhaps, in 2007. I asked because I like her’. As for when they would marry:
I say wait for the time you come to my place and meet my family. I went to her place in January 2008. It was from our side that we made the arrangements for the marriage.
2.14 At the civil ceremony, present were ‘my family and her family’:
We afterwards we go to the restaurant, the Hare Krishna in Nausori for snacks. After that we were taking photos and then we went home.
2.15 Mr S said that he and Ms C did ‘not live together. Our tradition tells us that we have the court marriage and then after the Indian ceremony we can get together. I told her there would be a religious ceremony’. What then intruded was:
One fellow came up to me and said: ‘I like your wife.’ He was not a worker at [the supermarket]. I don’t know anything about him.
2.16 At this stage, Ms C informed the Court:
I don’t know who the person was but [Mr S] just told me about it.
2.17 Mr S said that at that time Ms C:
...says she does not want to marry me. She did not say why. We were just preparing for the religious wedding. After we got engaged – after the court marriage we started collecting everything for the religious marriage. That was planned for 6 and 7 December 2008. But then she said she did not want to do the religious marriage. I said that too because when that fellow came up to me my heart felt bad for her. But I never thought of that man, that he would come into it. I told her ‘whatever I can do, I will do it’. But I do not want to marry her now. Because she told me that she has to stay with me after the religious marriage and I must leave my mother. But my mother has a bad heart and I have to be with her.
2.18 (d) Ms C’s Further Evidence: Given an opportunity to ask questions of Mr S (as neither she nor he was represented, and the same opportunity had been provided to Mr S vis-à-vis Ms C’s giving of evidence), Ms C stated:
I didn’t say after marriage he [Mr S] has to come and stay with me. But he always listens to his mother and I was saying ‘listen to me’.
2.19 She added:
I can’t be with someone who can’t make me happy through my life so I can’t be with him [Mr S].
2.20 She said:
I want a nullity because if I have dissolution then I will be a divorcee and only some people will want to marry me. People will be asking all sorts of questions about why I am divorced.
2.21 As for Mr S, Ms C said:
I only want to wish him that he gets a better partner in his life and gets happy in his life.
2.22 (e) Mr S’s Further Evidence: Asked whether he had any further matters he wished to raise, Mr S said:
We are not on talking terms. I just want a nullity not a divorce. I just want a nullity as I don’t want our lives to be spoilt. I just want us to live separate lives.
2.23 (f) Mr D C’s Evidence: Ms C’s father, Mr D C, said that when his daughter and Mr S married:
Both of them were on talking terms and agreed to get married in the court. I didn’t know him before he proposed to her [Ms C].
2.24 He said:
Last year [Mr S] and his mum came to our place. That was the first time I met him.
2.25 Asked about a religious marriage, Mr DC said:
Yes, there was going to be a religious wedding. He [Mr S] told that there would be. If the wedding was going to happen then it must be in our religion, in the Hindu tradition.
2.26 He said that his daughter ‘didn’t say there wouldn’t be a religious wedding but there hasn’t been a religious wedding. There was some problem by [Mr S] and there has been no religious marriage’.
2.27 He said that Mr S:
...told my daughter ‘when you get married with me, you won’t be happy with me’. My daughter told me. I told her it all depends on you, whether you want to get married or not. It’s your life’. She informed me that she did not want to get married to him. There was some problem – if she was married to [Mr S] then she won’t be happy with him. I think they are not agreeing and want nullity. I think it is not a good thing to come to court but we have to come to court because she doesn’t want to marry him.
2.28 (g) Mrs K W’s Evidence: Mrs K W, Mr S’s mother, said:
The girl told me she doesn’t want to get married to him {Mr S] and doesn’t want him. We had plans for the religious marriage in November/December 2008. That date was given for the religious marriage.
2.29 As to the marriage not going ahead, Mrs W said:
Yes, I am very upset. I have five kids, four are married and there is only one left and he doesn’t have a father and all the things are on me – I am the one supporting him. I would have been happy if he was married in the religious marriage.
2.30 As for the civil marriage, Mrs W said ‘all the family was there. They did not live together because in the Indian tradition it is after the religious marriage that the lady goes to live with the man. Both of them don’t want to live together. You can’t force the girl to live with my son. I want them both to be happy’.
2.31 Mrs W said that Ms C ‘did not want to stay with me and my boy is a very good boy and truthful. He doesn’t want to leave me as he is helping me in my old age’.
3. FAMILY LAW ACT PROVISIONS & BASIS OF APPLICATION
Section 32(1) of the Family Law Act provides that an application for an order of nullity must be based on the ground that the marriage is void, then goes on to state that a marriage is void on various bases:
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) either of the parties is, at the time of the marriage, lawfully married to someone other person;
(b) the parties are within a prohibited relationship;
(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
(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;
(iii) that party is mentally incapable of understating the nature and effect of the marriage ceremony;[1] or
(e) either of the parties is not of marriageable age;
and not otherwise.
3.1 The joint application is made, as noted, under section 32(2) (c) – as to solemnization of the marriage. There is no evidence to support any of the other grounds, apart from the possible application of ‘fraud’ in accordance with section 32(2) (d)(i).
3.2 (a) Solemnization of the Marriage: Ms C’s evidence was that she nominated the ‘solemnization of the marriage’ item because, effectively, the marriage ‘didn’t work out’. Mr S’s evidence was similar. However, this is not the meaning of this ground.
3.3 There is nothing in the evidence to support this ground.
3.4 Section 32(2) (c) cover the case where the marriage ceremony itself is defective in its formal aspects. In the present case, however, the Marriage Certificate shows that the requirements of section 25 of the Marriage Act (Cap 50) have been complied with. The Marriage Certificate carries all necessary the details of the parties, together with names of their parents and of the witnesses. It carries the name of the Marriage Officer who conducted the marriage ceremony and was registered with the Office of Births Deaths and Marriages. There is nothing to indicate that the marriage was not properly solemnized and there is nothing in the evidence of the parties or their witnesses that attests to this. Indeed, the opposite is the case.
3.5 Hence, this ground is dismissed.
3.6 (b) Other Provisions: Putting to one side section 32(2)(d)(i) insofar as ‘fraud’ is in issue, there is no suggestion in the application or in the evidence before the Court that any of the other provisions (not nominated by the parties) applies. As to ‘duress’, there is no evidence of this – the marriage was not an arranged marriage, but one where the parties knew one another before the civil ceremony, becoming acquainted through their paid work and enjoying outings to the cinema. Ms C said she and Mr S went on two occasions to see films prior to his asking her to marry him and Mr S said it was once. Whatever the case, it is apparent that they were friends, that they were in a relationship of ‘boyfriend/girlfriend’ and that they had social interaction as well as interaction in the paid work place.
3.7 The evidence was that Mr S asked Ms C to marry him and that after speaking with her parents she agreed. That she felt obliged to speak to her parents before saying ‘yes’ does not turn this into a marriage where there was no real consent by reason of force, pressure or ‘duress’. Indeed, Mr DC’s evidence was that it was up to Ms C to decide whether she wished to marry or not. This was in relation to the religious wedding however it does not detract from the proposition that similarly with the ‘court’ wedding or civil marriage ceremony it was a matter for Ms C. That Mr S voluntarily asked Ms C to marry him because ‘he liked her’ is indicative of this being a voluntary arrangement entered into freely by Mr S, as it was entered into freely by Ms C.
3.8 Hence, there is no application of section 32(@) (d) (i) insofar as it relates to ‘duress’.
3.9 As to the other provisions:
3.10 This leaves for consideration section 32(2) (d) (i) insofar as it relates to fraud.
4. ‘No Real Consent’ – A Question of Fraud?
Turning to section 32(2)(d)(i), the question then is whether the evidence before the Court brings the matter within the scope of ‘fraud’ within the meaning of the Family Law Act.
4.1 This Court has reviewed extensively the authorities on fraud in nullity. As has been said previously, with the introduction of ‘no fault’ dissolution or divorce and the elimination of ‘matrimonial offences’ the notion that the law must be applied in this field in a quasi-criminal manner, in accordance with criminal or quasi-criminal standards, precepts and principles, is obsolete – if it were ever appropriate: KN and EG (CasNo HBM 20/08L, 23 June 2008); FNB and NAM (CasNo HBM 20/08L, 23 June 2008); AD and PC (File No. HBM 54/08L, 24 October 2008); AB and MAM (File No. 0595/2008S, 29 September 2008); PPR and DRS (File No. HBM 50/08L, 16 December 2008); and MK and NJ (HBM 56/2008L; File No 0436/2008L, 17 December 2008)
4.2 ‘Fraud’ needs to be interpreted, analysed and applied specifically to nullity – just as in other civil fields it has an application peculiar to the particular field – as for example in fraud under the Torrens System of land transfer: Narayan & Anor v. Sigamani and Ors [2008] FJHC 204; HBC059.2004 (5 September 2008); and in mutual wills: Osborne v. Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228 (14 December 2001)
4.3 In a number of cases this Court has recognised that parties would not enter into a civil marriage if it were not for the undertaking and understanding that a religious or traditional wedding would follow. Under section 36 of the Marriage Act (Cap 50) religious marriage is provided for:
Additional religious ceremony
36. (1) At any time after the solemnization of a marriage by the Registrar-General or a district registrar, the parties to such marriage may, if they so desire, upon the production of the certificate of the Registrar-General or district registrar as to the marriage, have a further marriage service performed according to the form ordained or used by the religion or religious denomination to which either or each of such parties belong.
(2) Nothing in the reading or celebration of a marriage service under the provisions of subsection (1) shall supersede or invalidate any marriage previously solemnized nor shall such reading or celebration be entered as a marriage in the register of marriages.
4.4 Religious marriage has no pre-eminence in the legal system and no legal status beyond the recognition given in section 36. Civil marriage does. It is the legal marriage which is recognised as ‘marriage’. By the civil marriage, the parties become wife and husband. At the same time, this recognition of religious marriage acknowledges that within Fijian society, individuals do have religious beliefs and cultural traditions which mean they do make use of this legal provision.
4.5 Where a person believes that a religious marriage is essential to their ‘being’ and considering themselves to be ‘married’, presenting themselves ‘to the world’ as a married person, then a representation made to them that a religious marriage will follow the civil marriage is a strong influence. It is likely to be not only highly influential but a ‘key’ to their agreeing to go through the civil marriage ceremony. There would appear to be no advantage in a person who believes thus, to go through a civil marriage ceremony unless there were the firm, clear and committed prospect of a religious ceremony to follow. Holding out to a person who believes this that a religious marriage will follow is a representation that procures the ‘consent’ to the civil marriage.
4.6 Where religion, culture and tradition dictate, the person who is civilly married yet believes in religious marriage does not live as a married person nor present her/himself as married until the religious ceremony has taken place. As Mrs W said:
...in the Indian tradition it is after the religious marriage that the lady goes to live with the man: at para [2.30].
4.7 If, then, the representation is renounced so that the religious marriage does not go ahead, a civil fraud is arguably effected against the person who misled or drawn into civil marriage because of the (mis)representation. A religious marriage is essential to their considering themselves ‘married’ and presenting themselves as a married person is a strong influence and indeed is central to whether or not the person being so represented to goes through the civil ceremony.
4.8 It is inconceivable that a person adhering to the belief in a religious marriage, and to cultural and traditional values, principles and precepts that dictate religious marriage as a necessity to cohabitation and all the appurtenances of marriage, would agree to go through the civil ceremony without the undertaking as to a religious ceremony to follow. To do so would be to place her or himself in a position of being married yet unmarried – legally tied to a person, yet unable to live with them and to hold themselves out as married to that person, and unable to take to themselves all the advantages of marriage along with the duties and responsibilities.
4.9 The questions that must be asked and answered according to the balance of probabilities for this circumstance to qualify as ‘fraud’ within the meaning of section 32(2) (d)(i) of the Family Law Act are:
4.10 In addition, there must be clear and cogent evidence establishing that the parties did not take up the appurtenances of marriage after the civil ceremony and before the religious ceremony. If the parties do cohabit despite there being no religious ceremony, then it is highly unlikely that the would be able to argue that a nullity should be granted on the basis of fraud as to a representation, etc that a religious marriage would take place. Fraud in the circumstance set out here can be shown only if it is clear that the religious marriage and its representation was in fact a key element of the parties taking up a married life and representing themselves as married. If they take up a married life and represent themselves as married without the religious marriage, then even if the original consent to the civil marriage was procured by the religious marriage being a future prospect, they cannot claim ‘fraud’ within the meaning of the Family Law Act. They are married in all meanings of the word and status.
4.11 How then does the present case measure up?
5. The Evidence - Civil & Religious Marriage
Mr S and Ms C are persons committed to the religious belief, tradition and custom that requires a religious marriage in order to be and represent themselves as being ‘married’. The civil marriage ceremony is not, for them, enough: it is a ‘halfway house’ or ‘engagement’ or indicator that they will be married partners in the future, following the religious marriage. Each relied upon the representation of the other that the religious marriage would occur; otherwise, they would not have married in the civil ceremony.
5.1 This is not a case of an arranged marriage where parents decide upon the partner/s. It is not a case where parents make the arrangements for marriage, without the parties knowing one another before hand. On the contrary, Ms C and Mr S had a conventional beginning to the ‘marriage’ contracted civilly: they came to know one another through paid work in the same workplace; they socialized by visiting the cinema; Mr S asked Ms C to marry him. There was no intercession by a marriage broker or family member introducing the parties shortly before the civil ceremony. Rather, they knew one another for some time prior to the proposal, and the civil ceremony took place some time after the proposal.
5.2 That Ms C did not say ‘yes’ to Mr S until she spoke with her parents about it does not mean that she was not a free and willing party to the marriage in the sense of choosing her partner and wishing herself to enter into the marriage relationship with him.
5.3 However, it is equally clear that Ms C would not have gone through the civil ceremony had she not believed that there would be a religious marriage to Mr S to follow. Mr S would not have gone through the civil ceremony with Ms C had he not believed a religious marriage to Ms C would follow.
5.4 After the civil ceremony they did not live together. They continued their lives as they had led prior to the cavil marriage, each living in her/his own household with parent/s. They did not purchase household items or make joint purchases or set up a joint bank account. Ms C said that they did talk about the future and their lives together in that future. However, it appeared that that discussion related not to the situation they were in at that time (being civilly married) but to the future that would come about after the religious marriage. Mr S talked about making plans and purchases – but these were not plans as to living together or any purchasing of household items, but plans for the religious marriage. These are plans akin to those persons without that religious belief, tradition and culture make in respect of the civil marriage ceremony itself.
5.5 As in ERC and LS (HBM 001/08; FamCas No. 07NAN 0486, 29 February 2008), there was no ‘real’ marriage here. There was no living together or relationship akin to marriage: all this was to occur after the religious marriage. Mr S and Ms C did not engage in ‘marriage’ beyond a civil ceremony. The ‘marriage’ between them was not a marriage in the sense recognised by section 26 of the Family Law Act, whereby the Court must take into account::
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while the family is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage;
(e) the Convention of the Rights of the Child (1989) and the Convention on the Elimination of all Forms of Discrimination Against Women (1979): s. 26
5.6 In one sense, each reneged on her/his commitment to a religious marriage; each renounced that commitment. Mr S was upset when a young man approached him saying that he (the young man) ‘liked’ Ms C. Mr S then appears to have lost confidence and come to a belief that he would not be able to make Ms C happy and that others or another could. Ms C was happy until the civil marriage ceremony after which she believed ‘things went wrong’ or awry. She believed that Mr S was too allied to his mother and that she (Ms S) would not have a happy life with him. She says that it was Mr S who first renounced the religious wedding. It appears however that Mr S was operating under an impression that Ms C did not want to go through with the religious ceremony, renounced it, and did not want to be with him or married to him.
5.7 On balance, it appears to me that it was Ms C who withdrew her commitment to the religious ceremony, which meant that Mr S’s consent to the civil marriage was undercut. He never would have gone through that ceremony, had the representation not been made or there been no holding out by Ms C that religious marriage would follow.
5.8 Upon that basis, it is proper for the Court to hold that misrepresentation or in other words civil marital fraud was operative here, and Mr S’s consent was procured by it. As a secondary matter, Ms C’s consent was gained because Mr S held out the prospect of religious marriage to her.
6. DETERMINATION
Taking into account the evidence, as between Ms C and Mr S there is and was no valid marriage. Consent to the civil ceremony was procured by the representation that a religious marriage would occur. That representation was not fulfilled and it is clear from the evidence that it never will be fulfilled.
6.1 The Court accepts that the representation made by Ms C to Mr S as to a commitment to going through a religious ceremony after the civil marriage, and then a refusal and failure to do so, comes within the ambit of civil fraud within the meaning of the Family Law Act. As a secondary matter, the representations made by Mr S to Ms C that a religious marriage would be held have not been fulfilled.
6.2 This means that the marriage between Ms C and Mr S should be terminated by the grant of nullity. In making this determination, the Court emphases that this is not a criminal jurisdiction and this is not a criminal matter. It is a civil jurisdiction and this determination is as to civil law and most particularly to the civil law of fraud under the Family Law Act.
7. DECLARATION AND ORDERS
The following declaration and orders are made:
Jocelynne A. Scutt
Judge
Suva
13 March 2009
[1] This paragraph is not listed as (iii) in the Family Law Act however it is clearly intended to be subparagraph (iii) of paragraph (d). This is simply an oversight in setting out and can be corrected through Parliament’s incorporating it into a Miscellaneous Provisions Bill.
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