TZS and FSB [2009] FJHC 97; File No 0163.2009 (3 April 2009)

IN THE HIGH COURT OF FIJI
FAMILY DIVISION
AT SUVA

ORIGINAL JURISDICTION
PRINCIPAL RELIEF

File No 0163/2009

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

T Z S
Joint Applicant

AND:

F S B
Joint Applicant

Appearances:
Joint Applicant - Mr S in Person
Joint Applicant - Ms B – No Appearance

Date of Hearing: 2 April 2009
Date of Judgment: 3 April 2009

JUDGMENT

Nullity application; Jurisdiction through citizenship and residence: s. 24 Family Law Act 2003; Civil marriage; No religious marriage; Ground stated as ‘No real consent given’; Right to marry in accordance with tradition, culture and religious beliefs; Question as to evidence of ‘duress’; Meaning of ‘fraud’ under Family Law Act 2003; Family Law Act 2003, ss. 26; 32 (2)(d)(i); Civil standard, not criminal standard under Family Law Act 2003; Marriage Act (Cap 50), s. 36

AB and MAM (File No. 0595/2008S, 29 September 2008)
FA and BAAK (CasNo HBM 35/8L; 0236/NAN/08, 2 September 2008)
FNB and NAM (CasNo HBM 20/08L, 23 June 2008)
KN and EG (CasNo 0029/2008S, 6 May 2008)
NM and DR (0008/LTK/2008, 14 April 2008)
NRD and ESP (08/NAN/0190; HBM 27/08L, 7 August 2008)
RD and SS (08/NAN/0169; HBM 24/08L, 31 July 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 2008)
RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008)
SN and ADR (File No 0439/2008, HBM58/2008L, 4 February 2009)
SS and SNM (CasNo HBM 51/08L, 8 October 2008)
VDC v VNS [2009] FJHC 69; File 0064.2009 (13 March 2009)

1. Application for Nullity

The parties – T Z S and F S B make joint application for nullity under section 32 of the Family Law Act 2003. The application relates to the civil marriage contracted between them on 19 October 2008. The ground stated is ‘No real consent given’. Section 32 in this regard states:

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] or

(e) ...;

and not otherwise.

1.1 The Application Form indicates that both Mr S and Ms B are citizens of Fiji and upon that basis the Court has jurisdiction under section 24 of the Family Law Act. Additionally, each is resident in Fiji and hence jurisdiction under section 24 lies with this Court in that regard also.

1.2 The application was filed with the Registry on 12 March 2009. Forty-eight days is generally required to elapse between the filing and hearing of a nullity application where parties are resident in Fiji, or fifty-two days if a party is abroad. In the present case, time was abridged upon the basis that the application was joint and hence there is no requirement for service.

1.3 Mr S was present at the hearing. Ms B was not, although being a joint applicant she is taken to be aware of the hearing date and it is noted that her signature to the application was witnessed by a lawyer. However, to ensure her absence did not cause an impediment to the hearing, the matter was stood down to enable contact to be made with her by the Court Orderly and Court Clerk. Each independently obtained information that Ms B was in Labasa and would not be present. The hearing then took place in her absence.

2. Evidence in the Hearing

In addition to the evidence contained in the Certificate of Marriage, Mr S gave evidence and Mr N F S, Mr S’s brother, appeared as a witness.

2.1 (a) Marriage Certificate: The Certificate of Marriage indicates that in addition to the marriage taking place on 19 October 2008, the marriage was conducted by Kailash BHOOSAN, a Marriage Officer, in accordance with the provisions of the Marriage Act (Cap 50).

2.2 In the course of the hearing, an issue arose as to the place of the marriage. Mr N S said that it took place at the home of Ms B in Nadi. The Certificate of Marriage says that it took place at Semo, Sigatoka. Sigatoka and Nadi are relatively distant from one another and could not be mistaken. I observe that the Marriage Certificate indicates that the date the marriage was registered is 12 March 2009, some five months after the marriage ceremony and the date the Certificate was extracted. It is unusual for registration to be so delayed, for it is required to take place shortly after the marriage, being governed by timelines. Perhaps this delay resulted in the incorrect place of marriage being noted on the Certificate of Marriage, for I further observe that on the Application Form the place of marriage was originally stated as Nadi, but was altered to Sigatoka apparently to conform to the Certificate.

2.3 This indicates the importance of ensuring that timelines are followed in registration of marriages and that Marriage Officers ensure that their responsibility vis-à-vis timelines is met.

2.4 The Marriage Certificate further provides:

• Mr S was born on 4 September 1985 and was 23 years of age at the date of the marriage
  
• Ms B was born on 24 May 1989 and was 19 years of age at the marriage
  
• Occupation is listed
  
  • For Ms B – Domestic Duties
    
  • For Mr S – Businessman
    
• Conjugal status appears as:
  
  • For Ms B – Spinster
    
  • For Mr S – Bachelor
    
• The Birthplace of each appears as:
  
  • For Ms B – Nadi Maternity Unit
    
  • For Mr S – New Maternity Unit
    
• The usual place of residence of Mr S appears as an address in Laucala Beach, Fiji
  
• For Ms B usual place of residence appears as an address in Nadi
  

2.5 In addition, Mr S’s father's name and mother's maiden name appear as do the father’s name and mother’s maiden name of Ms B. Witnesses to the marriage are identified. The Marriage Certificate is signed by the Registrar General of Births, Deaths and Marriages and bears the stamp of ‘Registrar General Fiji’.

2.6 (b) Mr S’s Evidence: Mr S said he is self-employed as a hairdresser working in Suva. He said the marriage was arranged:

My parents went to look at the girl and did everything. They said everything was okay and I didn’t think anything about it.

2.7 He said Ms B’s family was ‘a totally new family to my family and to me’:

My brother-in-law works in a restaurant in Nadi and the girl’s mother did the cooking there, and they were talking and my brother-in–law found out about the girl.

One week before the engagement I met her. We went to their place in Nadi. I had no chance to talk with her. After the legal marriage we got to talking on the cell phone.

We did not live together as we cannot do that until the traditional marriage. It is against my religion to live with the girl before the traditional marriage. That was planned for June this year.

2.8 Mr S said that after the civil marriage and some talks on the cell phone:

The girl told me she was having an affair with another boy. She wants to be with the other boy. She is also ready to have the nullity done.

2.9 Mr S said that Ms B told him about her relationship with the other man ‘on 21 December 2008’. He could remember the date specifically because it was the day of a ’religious programme’. He said:

As long as she is happy, that’s the best part.

2.10 He said he was ‘shocked’ when Ms B told him about her other love interest:

I didn’t expect it from her – if she was pure I wouldn’t expect it.

2.11 Asked whether he and Ms B had any joint property or had made any such arrangements, Mr S said they had no joint bank account and no furniture or other household goods. He said that they did not talk about the future or having children or other aspects of marriage because:

I didn’t talk much to her – I was just getting to know her.

2.12 (c) Evidence of Mr N F S: Mr S’s brother, Mr N S, said he is self-employed and works outside Suva as a hairdresser, in the Nausori area. As to the marriage between his brother and Ms B, he said:

Basically our parents saw the girl and were pretty happy with it. Our parents said ‘yes’ to the arranged marriage. They accepted that we were a pretty good family and my parents accepted that they were. But in the end, the girl had not agreed, and neither did he [Mr S].

2.13 He said:

When the whole ceremony was being arranged, the civil ceremony took place at Nadi – she was from Nadi and it was at her place. First our parents went to see the girl, and they agreed to the marriage and worked it out. Then there was the legal marriage at the girl’s residence. We came back to our place the same day – we were there at her residence in Nadi for the legal marriage. It was approximately three hours, for the legal marriage and exchanging of goods.

2.14 Mr N F S said that his brother did not take a part in the marriage arrangements. Mr S did not go with his parents when the first meetings took place and the arrangements for the marriage were worked out between Ms B’s parents and their parents. ‘When the whole ceremony was being arranged,’ said Mr N F S, his brother was not there.

2.15 As to what happened after the legal marriage:

He [brother Mr S] and the girl [Ms B] were never traditionally married. It is a traditional obligation in our religion that only after they are traditionally married do they start spending time together. That was planned for June and after that the girl would come to our home.

2.16 Mr N F Shad added:

He [Mr S – brother] was never up for the marriage itself. When the legal marriage was done, there was not even much chance to talk to her. But after a time it became necessary to sort matters out because neither of them really wanted it. The bottom line is that the girl and my brother do not want to be together.

3. The Evidence & Ground ‘No Real Consent’

There is no contention by the parties, and no evidence before the Court, that Mr S and/or Ms B was mistaken as to the other’s identity, nor as to the nature of the ceremony. Nor is there a contention or evidence that either is ‘mentally incapable of understanding the nature and effect of the marriage ceremony’. Hence, section 32(2) (d) (ii) and (iii) are not relevant to the application. The Court must, therefore, concentrate upon section 32(2) (d) (i): is there ‘duress’ or ‘fraud’ evidenced in the circumstances leading up to and surrounding the marriage of Ms B and Mr S on 19 October 2008.

3.1 (a) ‘No Consent’ by Reason of Duress? In the absence of evidence from Ms B, it is not possible to assess whether or not she consented to the marriage with Mr S, consistent with the principle as recognised:

• in the Family Law Act through the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), signed and ratified by Fiji and a part of section 26 of the Act; and
  
• by the Constitution in its acknowledgement of the need for adherence to international laws and in particular international human rights law in section 3 – and, hence, for example, to the Declaration of Human Rights.
  

3.2 Both the Declaration of Human Rights (Article 16(2)) and CEDAW (Article 16(1)(b)) recognise marriage as the union of two persons of their own volition – that is, as free and fully consenting human beings with the capacity to say ‘yes’ or ‘no’ to marriage with the other party..

3.3 Insofar as Mr S’s position is in issue, on his evidence he appeared to be fully accepting of the way in which the marriage came about. That it was an arranged marriage is not in question: the evidence indisputably establishes this:

• Mr S did not know Ms B before the marriage and was introduced to her only days before the civil wedding ceremony took place;
  
• Mr S’s brother-in-law and Ms B’s mother were employed at the same paid work place and through conversation learned that the one had an unmarried daughter of ‘marriageable age’, whilst the other had a brother-in-law of such status;
  
• Parents of Ms B and Mr S met –
  
  • on the first occasion so that Mr S’s parents could (in the absence of Mr S) view Ms B as a prospective partner for their son and assess the prospects of a marriage between her and Mr S;
    
  • on the second (and on Mr N F S’s evidence) additional occasion/s, to make arrangements for the union, so as to determine on matters such as ‘exchange of goods’ – as in what goods should be exchanged and when, and other relevant issues;
    
• Subsequently, Mr S attended at Ms B’s home, together with his parents, to (effectively) seal the arrangement – he on that occasion having little time to speak with her and in any event the visit being a family meeting rather than any private meeting between Ms B and Mr S;
  
• Some days later the civil wedding occurred at Ms B’s home, with Mr S and his family attending and remaining for some three (3) hours for the ceremony to take place and ‘exchange of goods’ (as Mr S’s brother, Mr N F S, put it).
  

3.4 However, Mr S did not in his evidence speak of having been ‘pressured’ into the arrangement or ‘forced’ to marry Ms B. Rather, he appeared to accept this approach to marriage as one with which he agreed. As was clear, such agreement was a consequence of tradition, culture and religious beliefs and values. Mr S’s position appeared to be that by reason of these beliefs and values, his initial commitment to the marriage (once he had been informed of his and Ms B’s parents’ plans) was not only appropriate, but in accordance with his wishes.

3.5 Mr S’s brother, Mr N F S, construed the matter somewhat differently. His evidence was that ‘in the end, the girl had not agreed, and neither did he [Mr S]’; that neither Mr S nor Ms B ‘want to be together’; and that Mr S ‘was never up for the marriage itself’.

3.6 This raises a question whether, if the individual himself (or herself) raises ostensibly no objection to the circumstance and reality of an arranged marriage, but another witness indicates that that individual did not in fact wish to comply, the Court could hold that there was ‘no real consent’ to the marriage.

3.7 People marry for all sorts of reasons. Some commentators and critics, writers and sociologists suggest marriage is a ‘culturally induced’ arrangement in the vast bulk of societies (if not all).[2] Hence, they question the reality of ‘freedom’ to marry and found a family in any event.

3.8 Most societies recognise marriage as a relationship backed by the state through various legal provisions – not only marriage, dissolution/divorce and family laws, and laws relating to succession, wills and testaments, but through taxation laws, social security or welfare laws and other statutory schemes. Nullity provisions exist to recognise void marriages – for example, where consent is not ‘real’ in a particular circumstance or circumstances, by reference to principles that accept on the other hand that consent to marriage is real in distinguishable circumstances and situations.

3.9 It may be argued that Mr S’s evidence of effectively ‘going along’ with the arrangement indicates his consent not to the marriage with Ms B itself, but to the wishes of his family and a commitment to his cultural, traditional and religious beliefs.

3.10 Mr S is entitled to those beliefs, just as he is entitled to act in accordance with them – so long as the other party is acting freely, whether in concert with identical or similar beliefs or not. Part of the freedom to marry as one chooses must encompass the right to marry in accordance with one’s own religious, cultural and traditional beliefs. This in itself is recognised in the laws of Fiji through the Marriage Act (Cap 50) where section 36 provides:

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 belongs.

(2) Nothing in the reading or celebration of a marriage service under the provisions of subsection (1) shall superseded or invalidate any marriage previously solemnized nor shall such reading or celebration be entered as a marriage in the register of marriages.

3.11 Mr S (and Ms B) did bring their application by reference to ‘no real consent’. This means they did jointly acknowledge and rely upon an impediment going to consent. There is no indication in the application that it was the consent of one which was lacking rather than of both. On the other hand, Mr S’s evidence could be taken as affirming his agreement and consent to the marriage with Ms B, but his acknowledgment that her consent was not real by reason of her commitment to another partner – as she subsequently informed him. In her absence, however, the Court would have to make a determination upon Mr S’s evidence alone in that regard – that is, what Mr S says Ms B said to him as to her relationship with another. The matter is thus better resolved by reference to the other aspect of section 32(2) (d) i), namely ‘fraud’ as vitiating consent.

3.12 Similarly as to the conundrum of Mr S’s evidence and that of his brother, Mr N F S in respect of, on the one hand, Mr S’s apparent compliance with the prospect of marriage and, on the other, his apparent lack of wish to marry. The Court does not have to grapple with this, because the other aspect of section 32(2) (d) (i) – as to ‘fraud’ appears to have application.

3.13 (b) No Consent by Reason of Fraud? The circumstances here have appeared in a number of cases where application has been made for nullity, for example NM and DR (0008/LTK/2008, 14 April 2008); FNB and NAM (CasNo HBM 20/08L, 23 June 2008); RD and SS (08/NAN/0169; HBM 24/08L, 31 July 2008); NRD and ESP (08/NAN/0190; HBM 27/08L, 7 August 2008); FA and BAAK (CasNo HBM 35/8L; 0236/NAN/08, 2 September 2008); AB and MAM (File No. 0595/2008S, 29 September 2008); SS and SNM (CasNo HBM 51/08L, 8 October 2008); VDC v VNS [2009] FJHC 69; File 0064.2009 (13 March 2009).

3.14 Mr S married civilly in the obvious belief that a religious marriage would occur. It was scheduled for June 2009. The Court accepts that Mr S would not have gone through the civil ceremony had the representation not been made to him that a religious ceremony would follow. Otherwise, he would be in a position of not being married in accordance with his religion and tradition, yet legally married. This means he could not live with Ms B – set up house or establish a household, or plan a future and family with her, and so on. At the same time, he would not be able to form a relationship with anyone else for the purpose of committing to marriage. For so long as he is legally married, he cannot marry anyone else. As Mr S said, he must participate in a traditional marriage to be ‘married’, as it is ‘against [his] religion’ to cohabit in its absence. Mr N F confirmed this in his evidence, namely that:

• it is only after the traditional marriage that parties are able to ‘start spending time together’; and
  
• Ms B would come to the S family home to be with Mr S only after the traditional marriage.
  

3.15 Mr S’s evidence is that the religious or traditional marriage will not now proceed, because Ms B is engaged in a relationship with someone else.[3] That she has made the application for nullity jointly, at a stage where the civil marriage has occurred and before the traditional marriage has been held or can be held means that she is reneged on that promise. Mr S’s position is that as Ms B has a commitment to another person, he is unable to follow through on his promise of the traditional marriage.

3.16 This is not a case where the parties had a relationship prior to the civil marriage and now have changed their minds as to their commitment to one another, or one has done so: 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 2008); RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008); SN and ADR (File No 0439/2008, HBM58/2008L, 4 February 2009) In such instance, that they had not lived together generally would not stand in the way of the relationship breakdown being seen as a marriage breakdown. If lasting for the requisite 12 months, it would be ‘permanent’ and hence to be ended by dissolution (divorce): s. 30 Family Law Act

3.17 As earlier noted, the Marriage Act provides for religious marriage to follow a civil marriage, albeit this is not a ‘marriage’ having a legal status requiring entry in the Register of Marriages: s. 36(2) That provision exists in recognition of religious beliefs and traditions within the country’s communities which adhere to religious or traditional marriage as a fundamental ‘plank’ of marital commitment. That fundamental plank was set to occur for Mr S and Ms B in June 2009. The evidence of both Mr S and Mr N F S is that the June date is not only ‘vacated’ but that no religious or traditional wedding will take place between Mr S and Ms B at all.

3.18 In consenting to the civil marriage, Mr S acted upon the representation that the June-planned traditional wedding would occur. Bearing in mind the need to apply civil standards to ‘fraud’ as contained in the Family Law Act, the Court accepts that it is proper to grant the nullity application made here, on the basis of section 32(2) (d)(i) in its reference to fraud. As affirmed in KN and EG (CasNo 0029/2008S, 6 May 2008); FNB and NAM (CasNo HBM 20/08L, 23 June 2008) and FA and BAAK (CasNo HBM 35/8L; 0236/NAN/08, 2 September 2008), the Court emphasises that ‘fraud’ is not used in the Family Law Act by reference to anything other than civil fraud as existing in section 32(2) (d) (i) of that Act.

3.19 Hence, the application is granted under section 32(2) (d) (i) in its reference to ‘no consent’ by reason of ‘fraud’.

ORDERS AND DECLARATION

1. The application for nullity made by T Z S and F S B jointly under section 32(2) (d) (i) of the Family Law Act 2003 is granted.
   
2. The marriage of T Z S and F S B conducted in the Republic of the Fiji Islands on 19 October 2008 is declared void under section 32 of the Family Law Act 2003.
   
3. The marriage is thereby annulled.
   
4. No order as to costs.
   

Justice J.A. Scutt

03/04/09

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^[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.
^[2] See for example Simone de Beauvoir, The Second Sex, translated by H. M. Parshely, Harmondsworth: Penguin, 1984 (first published in 1949 in France, then in 1952 in the United Kingdom (in English); Betty Freidan, The Feminine Mystique, WW Norton, New York, NY, 1963; Phyllis Chesler, About Men, Harcourt, Boston, Mass., 1979. See also Margaret Mead, Coming of Age in Samoa, Mentor, Denver, Co., 1961 (first published 1928, US)

^[3] This might be seen as having some confirmation through the Court’s efforts to contact Ms B to ascertain whether she would be present at the hearing – having notice through the joint application. The mobile telephone number she supplied was answered by a male person (not her father) who advised the Court Clerk and Court Orderly (in separate calls) that Ms B was in Labasa. Upon calling to give notice of the date of judgment, the same person answered the mobile telephone, providing information confirming his familiarity with Ms B and her whereabouts.