Insights and inspiration
Guess Who's Coming to Dinner
17 June 2016
It seems obvious to say that if you want a divorce you must first prove that you have been married. For most couples this is easy. There is a marriage certificate. HIstorically, it has been much more difficult when people have come from countries disrupted by war, where documents can be lost or destroyed.
Without any formal evidence of marriage the applicant for a divorce must still prove there was a marriage in order to get a divorce.
One such case that recently came before the court referred to a couple who met in a "country in South East Asia...under the political regime of the Communist Party". Why the current fetish for privacy in the Family Court makes it impossible to identify even the country from which the couple came is beyond me.
The wife wanted a divorce. The husband opposed the divorce because he said they were never married.
At the time the case came before the court the wife was 60 years old and the husband 63. They have lived together since mid 1978 and had two adult children.
Because of political turmoil neither of them had documents.
The wife said that the first pregnancy started not long after they began their relationship and that the couple underwent a traditional marriage ceremony in late 1978 in the presence of their families. It was kept private, she said, to avoid it coming to the attention of the authorities. There were no records. They escaped the "South East Asian country" by boat and applied for refugee status here. The husband in his application said that he was married to the wife. He told the court that this was to benefit their refugee application.
They came to Australia in 1985, and lived together as a couple for another 22 years before the wife left. Both parties agreed that mostly their family and friends thought they were married.
In order to prove that there was a marriage the wife told the court that even thought there was no formal ceremony, the fact that her parents came with her to the husband's parents' home, bearing a fruit platter, and they shared a meal, that this was a traditional marriage ceremony. She said that no legal ceremony was possible because they were both effectively fugitives.
I must count myself fortunate that I do not live in "a South East Asian Country" because by that measure I would be a bigamist many times over, if all it takes is a fruit platter. I am going to ensure that I scrutinise any invitations with great care from now on.
To be fair, the judge, in finding the couple was in fact married, did also rely on the acceptance of recognition of their relationship by their families and by their community together with the statement the husband made in the visa application.
In presenting their arguments to the court, each of the parties gave different versions of their motivations. The husband's fear was that if they were married, his wife still had the right to ask for financial orders in her favour against him. If they were merely de facto partners, they had been separated for so long that her right to do so would have been lost.
The wife on the other hand said her motivation was that she wanted to get on with her life without the risk of being charged with bigamy: in other words, she had presumably another partner.
The judge did find that there was a marriage not because it complied with Australian law but because it complied with the rules of Private International Law that are incorporated into our Marriage Act.
Still, be careful whom you invite for dinner and what you invite them to bring.
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