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High Court of Fiji |
IN THE HIGH COURT OF FIJI
FAMILY DIVISION
AT LAUTOKA
ORIGINAL JURISDICTION
PRINCIPAL RELIEF
HBM 004 of 2009L
File No. 0059/2009L
F J N
Joint Applicant
AND:
M R K
Joint Applicant
Appearances:
Joint Applicant: Ms N in Person
Joint Applicant: Mr K in Person
Date of Hearing: 27 March 2009
Date of Judgment: 1 April 2009
JUDGMENT
Nullity; Family Law Act 2003, s. 24 – jurisdiction; s. 32(2)(d) – lack of consent; s. 32(2)(d)(i) – ‘duress’; ‘Arranged’ marriage as ‘forced’ marriage; ‘Duress’, ‘coercion’ and ‘force’ in nullity; Meaning of ‘duress’; Family and ‘elders’ pressure; Religious & cultural pressure; Contextual pressure; Civil standard and principles relevant; No cohabitation; No religious marriage; No relationship ‘breakdown’ evidencing grounds for dissolution; Applicability of nullity, not dissolution; Distinction between nullity & dissolution
APS and DAS (FHC No. 0883/07, 14 January 2008)
JFB (aka JF) and MN (HBM 33/08L; File No. 249/2008L, 1 August 2008)
JF and MN (HBM 33/08L, File No. 240/2008L, 1 August 2008)
MIR and NNJ (FCC 08/2007L, 6 May 2008)
Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008)
RD and SS (08/NAN/0169, HBM 24/08L, 31 July 2008)
RK and VS (HBM 28/2008L, 27 August 2008)
RS and AS (No 1) (CasNo 57/2008, HBM 10/2008L, 8 May 2008)
RS and AS (No 2) (CasNo 57/2008, HBM 45/08L, 8 August 2008RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008)
SH and BM (File No. 0572/2008S, 5 September 2008)
SN and ADR (File No 0439/2008, HBM58/2008L, 4 February 2009)
SNNA and SRM (FamCas No. 029/2008S, 2 June 2008)
SS and EM (File No. 0515/2008L; HBM 66/2008L, 3 January 2009)
SSD and HAK (HBM 38/08L: 08/LTK/0273, 1 August 2008)
SSR and AL (File No. 0579/2008S, 0579/SUV/08. 12 September 2008)
1. Application for Nullity
The marriage of F Y N and M R K took place at Meiguniah, Nadi in the Republic of the Fiji Islands on 23 August 2008. On 16 February 2009 the parties jointly filed an application for nullity, stating as the ground ‘No real consent given’.
1.1 Both parties being resident in Fiji, the application comes within jurisdiction by reason of section 24 of the Family Law Act 2003. The ‘No real consent’ ground is contained in section 32(2) (d) of the Family Law Act.
2. Evidence Before the Court
Both parties appearing at the hearing, the Court had the benefit of Ms N and Mr K’s evidence together with that contained in the Certificate of Marriage.
2.1 (a) Marriage Certificate: Ms N’s date of birth as recorded in the Marriage Certificate is 26 August 1984, whilst Mr K’s is 10 June 1984. This means that their ages, respectively, at the date of the marriage were 23 years and 24 years. Ms N’s occupation is listed as ‘Domestic Duties’, whilst that of Mr K is ‘Sales Representative’. Their conjugal or marital status appears as ‘Spinster’ for Ms N, and ‘Bachelor’ for Mr K. Her place of birth was Nadi Maternity Unit whilst his was Lautoka Hospital. Their respective places of residence appear as an address in Nadi for Ms N and one in Lautoka for Mr K.
2.2 The Marriage Certificate provides names of the mother and father of Mr K and Ms N respectively, together with names of two witnesses and that of the Marriage Officer. The registration number is 1046471 and the date of registration 20 October 2008. The Marriage Certificate is duly stamped and signed by the Registrar General of Births, Deaths and Marriages.
2.3 (b) Evidence of Ms N: Ms N explained to the Court the way in which the marriage between her and Mr K came about:
It was my family, my elders. They told me to get married to him. I didn’t want to get married to him yet.
2.4 She said that Mr K is ‘related to one of my cousins’:
I didn’t know him. I got to meet him through family members. We met at a cousin’s place and he was visiting there. I have no parents and live with my brother and sister-in-law. They did know him. They arranged the engagement and civil wedding. My cousin arranged for him [Mr K] to come to my brother’s place. He [my cousin] made arrangements with my brother for him [Mr K] to come and visit with my brother and sister-in-law.
2.5 Ms N said that when Mr K came to her home, she and he ‘had a chat’. His family came to visit also at that time. Then:
After a month, we got our engagement [meaning the civil marriage].
2.6 Ms N said that prior to the civil marriage, she did:
... not have much time to talk to him. He came two or three times to our place and our families were there.
2.7 As for what she and Mr K spoke of, she said that they ‘talked to each other about ourselves, what we like and dislike’.
2.8 She said she first met Mr K ‘about July’ 2008 and the civil marriage took place on 23 August 2008 ‘at my brother’s place. There was a small gathering of my family, his [Mr K’s] family and there were no friends there just our families’.
2.9 Asked by the Court what happened after the civil marriage, she said she remained at her brother’s home and Mr K went to his home. Asked whether they lived together after the civil marriage, she said:
No. Our traditional ways mean that we cannot live together until the religious marriage.
2.10 Ms N said Mr K came to visit her home ‘once’ after the civil marriage and ‘we talked then he went back to his home’. She said they ‘talked on the phone’.
2.11 The application for nullity was made, she said, because ‘we can’t stay together because of our differences’. She said that they made no joint purchases and held no joint bank account. She did not say she was married to people as she was ‘not sure’ and there was no religious wedding.
2.12 No date was set for the religious wedding, she said, however her brother spoke to Mr K’s family about it and his family were ‘not prepared to set the date’. Ms N said that ‘since there was no response from that side’ about the religious marriage the religious marriage did not take place. As she was not sure about getting married, she did not prepare for the religious wedding. She said that she and Mr K ‘stopped talking to each other and we thought of getting separated’.
2.13 Ms N repeated that she did not want to marry:
It was my elders who told me to get engaged to him. I had no interest in getting married.
2.14 She said she had studied to Form 6, and had gone into paid employment because her parents were ‘sick at that time’. She then took up domestic duties when living with her brother and sister-in-law and is now ‘looking for a job’.
2.15 (c) Evidence of Mr K: Mr K said he lives in Lautoka and works as a Sales Representative. The marriage to Ms N came about because:
It was an arrangement. A family arrangement. My family arranged it. My cousin talked to [Ms N’s] brother. Then he talked to my parents. It was maybe one month before the date of the engagement that I first met her [Ms N]. We talked about ourselves. We had no such discussion before we met at her brother’s place. Our families decided. I didn’t really want to [marry] but my family forced me. They were looking at my age. I was 22 and was not married. I was not thinking about marriage then.
2.16 He said:
I was not prepared at the moment to marry. I want to move. I want to develop my ideas and live before marriage.
2.17 At the civil marriage, Mr K said, present were ‘family members and no friends. It was a small gathering.’ As for living together, Mr K said:
No, we did not live together. Before the religious marriage we are not supposed to go to each other’s places and live together.
2.18 Asked whether he had told his parents he didn’t want to marry, Mr K said he wasn’t prepared to marry and:
I told my parents I was not prepared at this time. That’s when my parent decided – they told her [Ms N’s] brother that we don’t want to get married yet’ [referring to the religious marriage].
2.19 As to the nullity application, Mr K said:
We came to the court for the form. My cousin told me that was what to do. My cousin wanted to help. We were not married, it was just an engagement.
3. Inapplicable Provisions of ‘No Real Consent’
Section 32 of the Family Law Act 2003, under which the application is made, says as to lack of consent:
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;[1] ...
3.1 In the present case that section 32(2)(d)(ii) and (iii) are not relevant, and nor is section 32(2)(d)(i) insofar as it relates to fraud.
3.2 (a) Mistake as to Identity: As to section 32(2)(d)(ii) and ‘identity’, there was no mistake by Ms N or Mr K as to the other’s identity. Albeit the evidence is that they met one another only shortly before the civil marriage – in or about July 2008, with the civil ceremony taking place on 23 August 2008 – each knew who the other was before the marriage ceremony. Therefore, section 32(2)(d)(ii) has no application vis-à-vis identity.
3.3 (b) Mistake as to Nature of Ceremony: As to section 32(2)(d)(ii) and ‘the nature of the ceremony performed’, again albeit Ms N and Mr K regarded it as ‘engagement’ rather than ‘marriage’, defining ‘marriage’ as the religious ceremony, neither was under any misapprehension as to the fact that going through the civil ceremony was going through a civil marriage ceremony. Hence, section 32(2)(d)(ii) insofar as the nature of the ceremony has no application.
3.4 (c) Lack of Mental Capacity: As to section 32(2)(d)(iii), there is no suggestion that either Ms N or Mr K lacked mental capacity. Thus, this provision has no application.
3.5 (d) Fraud: As to section 32(2)(d)(i) and fraud, there is no suggestion that any conduct occurred that constituted or could constitute fraud. This was an arranged marriage being organised by communication between a mutual cousin and Ms N’s brother (and family), and the cousin and Mr K’s family (parents). From the evidence, it appears that no misrepresentations were made as to the marriage. Section 32(2)(d)(i) has no application insofar as it relates to fraud.
3.6 What remains is section 32(2)(d)(i) – ‘duress’ and lack of real consent.
4. ‘Duress’ in Nullity Law
Duress has traditionally been interpreted restrictively in nullity cases, generally denoting actions or activity of a physically threatening nature directed against the person claiming duress, or of physically abusive conduct, or ‘capturing’ or ‘kidnapping’ the individual, isolating them from their usual home or habitat, in a country foreign to them but which is the country of origin of the parents. Tradition, culture and religious belief play a part, with parents seeking to have the child marry according to cultural and religious dictates – that is, in the traditional way.
4.1 Some cases involve threats made by a parent or parents, in saying they will do harm to themselves unless the child complies by marrying the chosen partner. The authorities concentrate upon threats of suicide as vitiating consent – because the child is faced with going through with the marriage or being ‘responsible’, or seeing themselves as responsible, for a parent’s doing harm to themselves. In some instances parental threats are made of self-harm due to shame and embarrassment which will befall the family if the child does not go through with the arranged marriage.
4.2 Frequently in such instances, the party ‘agreeing’ to the arranged marriage is youthful – in her teens or, at most, early twenties (n these reported cases, the party is female). The courts acknowledge a vulnerability with youthful age, the implication being that this makes her/him less able to withstand pressure from the parents or family members.
4.3 These authorities have been discussed in other judgments of this Court – for example APS and DAS (FHC No. 0883/07, 14 January 2008); Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008); JFB (aka JF) and MN (HBM 33/08L; File No. 249/2008L, 1 August 2008); JF and MN (HBM 33/08L, File No. 240/2008L, 1 August 2008); MIR and NNJ (FCC 08/2007L, 6 May 2008); RD and SS (08/NAN/0169, HBM 24/08L, 31 July 2008); RK and VS (HBM 8/2008L, 27 August 2008); RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008); SH and BM (File No. 0572/2008S, 5 September 2008); SSD and HAK (HBM 38/08L; 08/LTK/0273, 1 August 2008); and SNNA and SRM (FamCas No. 029/2008S, 2 June 2008); SS and EM (File No. 0515/2008L; HBM 66/2008L, 3 January 2009)
4.4 Youthful age can be a factor. However, this does not always hold true in the sense of being conclusive, ruling out the possibility of coercion or pressure being operative where a party is older. In MIR and NNJ (FHC No. 08/2007L, 6 May 2008) nullity was granted by this Court in the case of the male party, MIR, being some thirty-one years at the date of the marriage. Having lived overseas for some ten years he returned home where his mother strongly desired him to marry. At thirty-one years of age, he was well past the age at which young men within his family and community tradition are expected to marry. He was held to have succumbed to pressure ousting real consent because in the context he remained a child to his (only) parent, and was isolated within the cultural setting of his childhood, away from his support network in his new country. All this was taken into account as supporting the grant of the nullity application
4.5 Other factors taken into account by this Court in determining nullity applications are the social, cultural and religious setting in which the civil marriage takes place, together with the impact of tradition in requiring obedience to parents and ‘elders’, particularly a father and/or uncles, and sometimes mothers or aunties.
4.6 ‘Arranged’ marriages where parents expect their children to comply with their wishes or do not consider the wishes of the children, operating upon the basis of parental right to decide when and whom a daughter or son will marry, run counter to human rights law, international law, and the Family Law Act. The right to enter marriage freely is recognised in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which is a part of the law of Fiji, being recognised in section 26 of the Family Law Act. The Convention on the Elimination of All Forms of Discrimination Against Women says that states being parties to the Convention ‘shall ensure on a basis of equality of men and women ... the same right freely to choose a spouse and to enter into marriage only with their full and free consent’: Article 16(1)(b) The Universal Declaration of Human Rights says: ‘Marriage shall be entered into only with the free and full consent of the intending spouses’: Article 16(2)
4.7 ‘Duress’ as employed in section 32 of the Family Law Act is not ‘duress’ as existing in criminal law. Nor should it be interpreted according to criminal law principles or precepts, or bearing such principles and precepts in mind. The Family Law Act is a law governing civil relations and in nullity and dissolution applications must apply civil law principles and precepts, and be governed by the civil standard of proof. It is in this context that the present application must be determined.
5. Nullity Law & the Present Application
Ms N and Mr K each say s/he did not wish to marry the other and, indeed, they were ‘not ready’ to marry. Each affirms that it was ‘family’ and a mutual cousin who arranged the marriage without regard to their wishes – their wishes were simply not taken into account. Ms N said that it was out of respect for ‘elders’ and obedience to them that she participated in the civil marriage ceremony. Both said that they did not live together and that this was prohibited by their tradition and culture, their religion requiring a religious marriage as a preliminary to cohabiting as married persons.
5.1 Aspects of Ms N’s evidence might be seen as confirming that there was a relationship ‘breakdown’ indicating that the proper legal outcome would be dissolution rather than nullity. She said the nullity application was made because:
... we can’t stay together because of our differences.
5.2 Further, that she and Mr K:
... stopped talking to each other and we thought of getting separated.
5.3 She also said that as to how the marriage between her and Mr K came about:
It was my family, my elders. They told me to get married to him. I didn’t want to get married to him yet.
5.4 These statements must be seen in context of the evidence as a whole. When she spoke of ‘our differences’, the evidence indicates that Ms K was not speaking of ‘differences’ as would a married couple, where a relationship breakdown comes about due to arguments, dissonance and ‘differences’ becoming pronounced during the course of the marriage. There was after all no ‘relationship’ here to breakdown in the sense of marital breakdown. Generally when they spoke of ‘marriage’, Ms N and Mr K were speaking of the religious marriage, regarding the civil marriage as ‘engagement’. When she spoke of ‘getting separated’, in the light of the evidence it was a matter of ‘separating’ before they committed to one another through the religious marriage which would, in their eyes, make them ‘married’ persons – as they would be in accordance with their culture and tradition.
5.5 Ms N’s statement: ‘I didn’t want to get married to him yet’ (emphasis added) could out of context be seen as an indication of a relationship which is committed but not sufficiently so for marriage – as where parties are ‘girlfriend-boyfriend’, and have not yet taken the step to commit to marriage or have thoughts of marriage in the future – ‘not yet’. This was not so for Ms N, however; it appears that it was a case of not wanting to marry ‘yet’ in the sense of wish to marry no one at this time. The ‘relationship’ with Mr K was as indicated in their evidence one of meeting at someone else’s house (the mutual cousin) then arrangements being made which were out of their hands, for their being committed to marriage at the behest of their families.
5.6 The evidence presented by Ms N and Mr K shows there was and is no marriage here which could appropriately be considered to have ‘broken down’ for the purpose of dissolution. This case is clearly distinguishable from RS and AS (No 1) ( CasNo 57/2008, HBM 10/2008L, 8 May 2008) and RS and AS (No 2) (CasNo 57/2008, HBM 45/08L, 8 August 2008). In RS and AS (No 1), although the parties had not lived together after the civil marriage, and no religious marriage had taken place (it was scheduled but then did not occur):
5.7 The facts for Ms N and Mr K are also different from SN and ADR (File No 0439/2008, HBM58/2008L, 4 February 2009), where the parties lived in a de facto relationship for some time, married, then sought nullity on the basis of ‘no real consent’ through fraud. The applicant, Mr SN, said that the respondent, Ms ADR, had concealed from him a previous marriage and previous ‘live in’ relationship, and three children from these partnerships. In that case, the parties had married because friends had persuaded them to do so and also because of certain property matters. This could not, however, be said to be such as to interfere with the quality of consent by the parties. The marriage subsisted for some time and the manner of revelation of the children and relationships and Mr SN’s reaction constituted evidence of marital breakdown rather than being indicative of a void marriage as required by section 32 of the Family Law Act. Nullity was refused. Mr SN and Ms ADR will have to seek dissolution of marriage if they wish to end the relationship.
5.8 The present case is also to be distinguished from SSR and AL (File No. 0579/2008S, 0579/SUV/08. 12 September 2008). There, the parties knew one another for some time before the marriage. After being friends for some time, Mr AL proposed to Ms SSR. They spoke to their parents and their parents then made arrangements for the civil marriage. A religious marriage was planned, prior to which the parties did not (in accordance with culture, tradition and religion) live together. The religious marriage did not go ahead, because Mr AL formed a relationship with another partner, and Ms SSR was then left in a position of being civilly married, but not ‘married’ in the eyes of her community nor according to religious precepts. This was, however, not a case where nullity could be granted for there was no duress, pressure, or coercion: the parties wanted to marry and came to that conclusion of their own volition. The ‘arrangements’ for the civil marriage were such as occur many (and perhaps most) communities when young people marry: their parents generally make the arrangements in the sense of paying for the reception and venue hire, etc. This at least has been the tradition in many (and perhaps most) cultures; it does not mean that there is an ‘arranged’ marriage in the sense of the parents or families foisting the parties upon each other or pressuring them to marry a person whom they have never met before or have met fleetingly only. Albeit Mr AL renege on his commitment to a religious marriage, the circumstances were very different from those cases where nullity has been granted: that the parties were voluntarily committed to one another, then one party found romantic diversion elsewhere is not uncommon as a foundation for dissolution. In SSR and AL this was the outcome for the parties: rather than nullity, should they wish to proceed to end the marriage formally, dissolution was the proper process.
5.9 In the present case, there was no violence, nor threats of it, nor threats made by family members that if the marriage did not go ahead, one or other or more of those members would do harm to themselves. There was no ‘force’ in this regard. However, the age factor is significant: Mr K said that the pressure arose because of his age, in that his parents considered he should marry because he was now 22 years old. As a matter of judicial notice, there is a strong tradition within families of the religious belief to which Mr K and Ms N’s families belong, that children should marry in or before their very early twenties. Obedience to parents together with cultural and religious pressure combine to interfere with the child’s capacity to say ‘no’ – to the parents. This is an indicative feature of such ‘arrangements’: that the child considers s/he is obliged to marry and if any indication is to be given of a desire not to marry, the child believes s/he should make this indication to the parent – that is, the parent is recognised as having the power to ‘force’ the marriage or to give up the arrangement.
5.10 Where parties are consenting to marriage – that is, where there is no arranged marriage – a party if deciding s/he did not wish to go ahead would say to the partner – not to the parents. In the present case Mr K did say to his parents that he did not wish to marry, but this did not effect the outcome he wished: they persisted with the arrangements and Mr K became a (civilly) married person.
5.11 Both Ms N and Mr K were clear that they did not wish to marry ‘yet’ – in the sense that they were too young, had not lived ‘in the world’ so as to develop and grow at their own pace into maturity. Each in her/his own estimate was too young to marry, and unready for that relationship. This made no difference: their families ‘required’ the marriage for they were, according to custom, tradition and religion, at or above the requisite marriage-age.
5.12 Taking all these matters into account – including religious and cultural pressure, the pressure of tradition and the requirement to obey parents and family members (in Ms N’s case, her brother with whom she now lives upon the death of her parents), the arrangements being made without reference to the wishes of Ms N and Mr K, and going ahead despite Mr K’s express statement to his parents that he did not want to marry – it is proper to say that there was ‘no real consent’. Pressure, coercion and duress must be seen in context. Here, there is a religious context, together with a cultural context and context of tradition. The parties never lived together. They never created joint arrangements between themselves – no joint bank account, no furniture purchases or purchases that married persons generally make, no presentation of themselves as ‘married’. What presentation there was, was of ‘engagement’ and intention to marry – the intention being that of their parents (in Mr K’s case) and family (in both cases).
5.13 The appropriate outcome here is not dissolution – it is nullity. The application should be granted.
6. Final Matters
This is not to say that nullity is the appropriate provision in all instances where parties marry through ‘arrangement’ or for reasons of religion or duty or obligation. Each case must be considered on its merits. Parties must present evidence that the Court accepts, on the balance of probabilities, fulfils the requirements of section 32 of the Family Law Act. In its absence, nullity will not be granted.
6.1 It is important that parents and families respect their children’s right to make determinations for themselves as to when and whom they will marry. This is an entitlement enshrined in the laws of Fiji, supported by international treaties, conventions and declarations.
Declaration and Orders
Jocelynne A. Scutt
Judge
1 April 2009
[1] Section 32(2) (d)(iii) is not set out as subparagraph (iii) in the Act however this is obviously an error of setting out and can be rectified easily through the Miscellaneous Provisions Bill process or a minor amendment to the Act. I have set the provision out in the way Parliament obviously intended for ease of understanding.
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