SS v SK
| Jurisdiction | New Zealand |
| Judge | R H Riddell |
| Judgment Date | 06 April 2011 |
| Court | Family Court |
| Docket Number | FAM-2011-019-000024 |
| Date | 06 April 2011 |
FAM-2011-019-000024
IN THE FAMILY COURT AT HAMILTON
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.
Mr S Bhardwaj for Applicant
Mr J Niemand for Respondent
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:–
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(a) The parties are both Indian of Sikh descent.
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(b) The marriage between the parties was an arranged marriage, which is not atypical in the parties' culture.
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(c) The parties had limited contact before the respondent arrived in New Zealand from India on 17 August 2009.
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(d) The parties were married some five days after the respondent arrived in New Zealand.
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(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:
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(i) there must be a reason advanced in support of the application to declare the marriage void ab initio;
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(ii) that reason must be in existence at the time of the marriage;
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(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 Maea v Sharma NZFLR 387. 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 Moss v Moss [1987] P 263 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 C v C NZLR 356).
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 Skelton v Waisoongnoen [2002] NZFLR 894 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 intention to cohabit with the applicant in a relationship which bore any resemblance to a marriage as usually understood. That does not however imply a lack of consent.
On the contrary the evidence suggests that as far as the respondent was concerned she was fully aware of the significance of marriage to the applicant. Her reasons were, it would appear, disingenuous. She married him for an ulterior motive, i.e. to assist with her application for an immigration permit. The applicant was and is entitled to feel somewhat used (paras 25–26).
Notwithstanding that, the Judge felt unable to declare the marriage void ab initio as both parties were in a position to and did validly consent to marry each other.
The issue of consent to a sham or fraudulent marriage was explored by Professor Caldwell in Void Marriages – Duress and Fraud as possible grounds for invalidation (2003) 4 BFCJ 119:
When considering the question of consent under s 31 of the Family Proceedings Act 1980, especially in the cases of so-called “sham” or “fraudulent” marriages, a pivotal underlying issue is whether marriage can be correctly typified as simply a mere legal status, or whether marriage necessarily connotes a meaningful, committed, emotional relationship. If the former, then even though one or both parties at the time of entering into the marriage never intended to live in any emotional or sexual cohabitation, there would nevertheless be valid consent to a marriage (albeit one intended on the part of at least one party, to be for a limited time and for a particular purpose extraneous to emotional commitment). On the other hand, if an essential element of legal marriage were an intention to enjoy a meaningful, emotional relationship and mutual commitment, then mutual consent to that cohabitation and a continuing relationship would be required for validity.
Caldwell concluded that emotional commitment was not a legal prerequisite for marriage citing Nygh J who said if it was “… a distinguished historical line of Englishmen from the monarch downwards would have been liable to have their marriage annulled …” ( Re Osman v Mourralai (1990) FLC 92–111 at 77,743).
In fact it would appear the floodgates have remained firmly shut. Chand v Richard involved a situation where the woman married primarily as an opportunity to see her sister in New Zealand. The Court declined to extricate her from what was described as “something of a mess” and held that the marriage was valid (Judge Adams, Family Court, Manukau FP 092-735/02 14/11/02).
W v W (Judge Twaddle, FC, Hamilton D275/03 23/6/2004) concerned the claim of immigration status as being grounds to annul the marriage. But there the Judge found that both parties:
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(i) knew they were taking part in a ceremony of marriage;
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(ii) understood what was involved;
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(iii) intended to marry the other.
While the wife was not emotionally committed to the husband, the Court found that emotional commitment was not a pre-condition in law for a valid marriage.
It is clear that a misrepresentation of intentions is not usually enough to vitiate consent to a marriage. If the parties understand what is involved by taking the step of marriage and intend to marry each other, then differing motives will not reach the very high threshold required to declare a marriage void ab initio. In rare cases however the fact scenario discloses much more than a mere misrepresentation.
For example in D v H (Judge Druce, FC, Kaikohe, FAM-2003-027-000106, 16/2/05) the wife had been raised in a traditional Chinese family. She and her family migrated to New Zealand when she was 11. During her last year of school her parents arranged for her to marry a man from China. He arrived in New Zealand and the parents insisted that he sleep in the same bed as their daughter although sexual intercourse did...
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