SS v SK
IN THE FAMILY COURT AT HAMILTON
Mr S Bhardwaj for Applicant
Mr J Niemand for Respondent
Application under s31 Family Proceedings Act 1980 (grounds on which marriage void) to have a marriage declared void on basis of absence of consent — allegation respondent married applicant for immigration purposes — parties both Indian — arranged marriage and had limited contact before respondent arrived in New Zealand — whether parties entered marriage freely — whether applicant's consent overborne by respondent's alleged misrepresentation at time of marriage.
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.
The issues were: whether there had been an absence of consent existing at the time of the marriage.
Held: Consent to marriage was a central issue. A number of cases had considered whether consent was vitiated by deceitful behaviour. Most of the authorities did not follow the decision in which had focussed on the intentions of the parties being wildly divergent at the time of marriage. The Court declined to follow it in this case as it did not fit in with the trend of cases or the principles articulated in them.
Misrepresentation of intentions was not usually enough to vitiate consent to a marriage. If the parties understood what was involved by taking the step of marriage and intended to marry each other, then differing motives did not reach the very high threshold required to declare a marriage void ab initio. A determination that a party's will had been overborne was rare. Short of that, the courts had found that subsequent events could not vitiate a consent that was given at the time of marriage. A review of the case law established the following principles:
• Emotional commitment to a marriage was not a precondition for the marriage to be valid;
• Absence of consent had to exist at the date of marriage, not arise later;
• Underlying undisclosed motives of one party for marriage would not meet the threshold, unless they had the effect of overriding the other party's will;
• The case law did not support annulling marriages where immigration status was the driver;
• Allegations that the marriage was a sham and entered into for collateral purposes would not be sufficient to declare the marriage void ab initio if the parties intended to marry each other and knew they were taking part in a marriage ceremony, and understood what was involved in the ceremony;
• Consent to the differing expectations that each party might have of marriage was not a necessary prerequisite, although understanding of the ceremony and genuine consent to the marriage was;
• A sham motive by one party when marrying the other party did not go to the heart of consent so as to qualify as an absence of consent required by s31.
SS had completed the immigration form for SK, who had merely signed her name. Presumably SS had supported SK in being able to remain in New Zealand. This countered his argument that his will had been overborne by any deceit about immigration status. SK did not have an ulterior motive prior to the wedding. She may have been reluctant to marry and have a sexual relationship, but she also had a lot to lose. She was unable to return to India due to shame and lack of financial support. It had been SS who had ended the marriage by forcing SK to leave. There was no evidence that SK's sole purpose in coming to New Zealand was to gain permanent residence. SS had knowingly entered into the marriage and had understood what was involved. His will had not been overborne.
RESERVED JUDGMENT OF JUDGE R H Riddell
[Whether a marriage should be declared void ab initio]
The applicant seeks a declaration that his marriage to the respondent on 22 August 2009 was void ab initio on the basis that there was an absence of consent by the applicant to the marriage and because the respondent allegedly married the applicant with the intention of betraying the applicant.
The respondent contends that she always intended the marriage to be a genuine one and that she only separated from the applicant following instances of domestic violence and at his insistence that she should leave the home.
Both parties agree as to the following:–
(a) The parties are both Indian of Sikh descent.
(b) The marriage between the parties was an arranged marriage, which is not atypical in the parties' culture.
(c) The parties had limited contact before the respondent arrived in New Zealand from India on 17 August 2009.
(d) The parties were married some five days after the respondent arrived in New Zealand.
(e) The marriage lasted for a period of eleven weeks and two days and the marriage was never consummated.
Section 31 of the Family Proceedings Act 1980 sets out the circumstances in which a marriage may be declared void ab initio.
Section 31(1)(a)(ii) states that a marriage shall be declared void ab initio only where:
By reason of duress, mistake, or insanity, or for any other reason, there was at the time of the marriage or civil union an absence of consent by either party to marriage or civil union to the other party.
In order to meet the criteria set out in the subsection above, three factors must be present. They are:
(i) there must be a reason advanced in support of the application to declare the marriage void ab initio;
(ii) that reason must be in existence at the time of the marriage;
(iii) the reason must have resulted in an absence of consent by either party to the marriage.
Consent to a marriage is a central issue. A number of cases have focused on whether the consent is vitiated by deceitful behaviour. Immigration status, a wish to see family in New Zealand, a false representation as to wealth or position are all reasons proffered as the basis for a claim under s 31.
A divergence of judicial views has arisen since the 2002 decision of Judge Inglis in . In that case the parties had married on 25 September 1999. Six months later in March 2010 they travelled to Tonga so the husband could apply for permanent residency in New Zealand on the basis of his marriage to a New Zealand citizen. The permit was granted on 17 April and the parties arrived in New Zealand the next day. By the end of that week the husband was staying out all night and his wife said his behaviour had changed noticeably. By the end of that month he told her he loved someone else and did not want her. She in turn inferred that he had only married her to gain permanent residence in New Zealand.
The Judge agreed, finding that at the date of the marriage, the parties' intentions were widely divergent. “For her it was a real marriage, for him a cynical and dishonest sham.” (Para 9).
It appears at the time there were few decisions on point. His Honour referred to only two cases; the first which contained dicta to the effect that a marriage may be declared void if there was fraud such “as procures the appearance without the reality of consent.”
The second was a more well known 1942 decision where a woman mistakenly believed she was marrying a celebrated Australian boxer with substantial assets. There the Court declined the application for a degree of nullity finding that she intended to consent to marry the man at the ceremony and the husband's actual assets or identity were immaterial (see ).
So Maea appeared to open the floodgates to a whole raft of scenarios based on the intentions of the parties being wildly divergent at the time of the marriage, despite the dicta of the Judge attempting to confine it to its facts:
Nothing said in this judgment is to be treated as doubting the reasoning in the range of cases upholding “sham” marriages in which the common and principal intention of the parties was to create a collateral advantage, such as citizenship, residency, or university allowance benefits. Those cases are clearly distinguishable (para 10).
However the following year, Judge Mather declined to follow Maea in describing the Maea decision as “difficult to reconcile with prior authority” (para 30). Judge Mather said he found no difference in principle between:
A marriage regarded as a sham by both parties, and one where the intentions of one party are genuine and only the other party treats it as a sham. Dubious intentions by one or both parties will not constitute a lack of consent, except in those rare cases where the circumstances were such that at least one of the parties could be said not to have understood the nature of the contract they entered into …. (para 30).
In that case the Judge found the woman entered into marriage knowing it was a sham:
…. in that she had no...
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