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NK and ZMR [2009] FJHC 95; Case No 0089.2009 (2 April 2009)

IN THE HIGH COURT OF FIJI
FAMILY DIVISION
AT SUVA

ORIGINAL JURISDICTION
PRINCIPAL RELIEF

CasNo 0089/SUV/09

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

N K
Applicant

AND:

Z M R
Respondent

Appearances:

Applicant - Ms Naidu
Respondent - No Appearance (Abroad – Australia)

Date of Hearing: 30 March 2009
Date of Judgment: 2 April 2009

JUDGMENT

Section 32(2)(d) Family Law Act 2003; Section 26; Section 32(2)(d)(i) – ‘duress’ & ‘fraud’; Duress in nullity/Fraud in nullity – civil law standard; Criminal law standard of duress/fraud inapplicable; ‘Duress’/‘fraud’ in context; Religious marriage to follow civil marriage; Religious marriage cancelled; No civil marriage without religious marriage; Marriage Act (Cap 50), s. 36 – ‘religious marriage’; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Universal Declaration of Human Rights; Constitution ss. 3; 195(c)

APS and DAS (FamCas No. 0883/07, 14 January 2008)
FNB and NAM (CasNo HBM 20/08L, 23 June 2008)
KN and EG (CasNo 0029/2008S, 6 May 2008)
MIR and NNJ (FHC No. 08/2007L, 6 May 2008)
Moss v. Moss (Otherwise Archer) [1897] UKLawRpPro 23; [1897] P. 263
RP and SAL (CasNo 08/SUV/0491, 19 August 2008)

1. Application for Nullity

N K makes application for nullity of the marriage between herself and Z M R conducted at Makoi in the Republic of Fiji Islands on 22 December 2008. One ground is listed, namely, ‘No real consent given’.

1.1 The application was filed in Suva on 6 February 2009 and served upon Mr R at his Australian address by post from the General Post Office, Suva on 10 February 2009. Mr R signed the Acknowledgement of Service on 28 February 2009 and this was flied in Suva on 16 March 2009 together with the Affidavit of Service. There is, therefore, no question but that Mr R is aware of the application and has no objection: none such is indicated on the Acknowledgement of Service albeit space is provided. Further, the ‘Notice of Application – Order of Nullity’ indicates under the heading ‘What Steps You Need to Take as the Recipient of this Notice’ at item 4. the steps to take if the recipient opposes the application. Mr R has taken no such steps.

1.2 At the hearing, Counsel for Ms K advised that an e-mail had been received from Mr R stating that he cannot be present at the hearing ‘for work reasons’. The e-mail was not tendered, however, as there is no opposition from him to the application (and see further Ms K’s evidence) his absence does not affect the hearing of the application.

1.3 The Court has jurisdiction to hear the application in accordance with section 24 of the Family Law Act 2003, as Ms K is both a citizen of Fiji and present in Fiji at the time of making the application, and her usual place of residence is in Fiji.

2. Evidence at Hearing

Ms K gave evidence at the hearing and this was taken into account together with that contained in the Certificate of Marriage.

2.1 (a) Certificate of Marriage: The Certificate of Marriage indicates that on the day the marriage was contracted, 22 December 2008, Ms K was a spinster and Mr R a bachelor. Both were born in Fiji at AMU (Anderson Maternity Unit), Suva, Ms K on 13 June 1987, Mr R on 11 December 1981. At the date of the marriage, Mr R was 27 years of age, whilst Ms K was 21 years. Ms K’s profession or occupation is listed as ‘Domestic Duties’, and Mr R’s as ‘Accountant’. Ms K’s ‘Place of residence’ appears as an address in the vicinity of Nasinu, whilst Mr R’s is an address being a suburb of Brisbane, Queensland, Australia.

2.2 Additional information is, as earlier noted, that the marriage took place at Makoi on 22 December 2008. It was witnessed by two persons whose signatures appear on the certificate, along with the signatures of bride and groom and the names of the parties’ parents, including maiden names of their respective mothers. The name and signature of the Marriage Officer completed the Certificate of Marriage, albeit I note there is no ‘Registered No’. This raises a question whether it has ever been registered.

2.3 (b) Ms K’s Evidence: Ms K’s Counsel took her through her evidence, establishing that it was she who made the application. Ms K said that the marriage took place in Fiji on 22 December 2008. Mr R came to Fiji sometime in December 2008, and prior to the marriage Ms K ‘knew him for nine days. He came to my home two days’. She said she came to know Mr R through her father’s broth who ‘introduced me to him’. She said:

I did not know him well. My father’s brother came to arrange the marriage. He [Mr R] didn’t talk to me very much and we were not in contact. I didn’t know that it was being arranged for me to marry him.

He asked me only one time if I wanted to marry him. I didn’t say anything to him – I told him to ask my father. My father didn’t ask me if I wanted to marry him [Mr R]. No family members asked me if I wanted to marry.

2.4 Ms K said she was 21 years of age at the time, and under the ‘Muslim religion girls marry at an early age’. She said:

My father was being pressured by my father’s brother that I am supposed to get married. I was not happy with this marriage when I was signing the Marriage Certificate. I was being pressured by my father and my father’s brother. They were there when I signed the Marriage Certificate.

2.5 She said:

I was not happy on that day. I was getting family pressure. I was getting pressure from my father’s brother and family from oversea. [Mr R] told me he was not happy with the marriage as he was also being pressured by his family to marry.

My father and his brother told me the boy is ‘good’ and don’t say ‘no’ to marriage. That is why I signed. I did not say ‘yes’ to the marriage. That is why I made the nullity application.

2.6 Asked by the Court why she did not want to marry, Ms K said:

It was because of the way he [Mr R] was talking to me. I didn’t like it. He texted from Australia ‘I’m not the perfect guy for you.’ I did not reply. I was sic for two to three days. Then he said ‘goodbye’ by text.

2.7 Asked why she ‘went along’ with the marriage, Ms K said:

I was showing respect to my father and my family, and my father’s brother.

2.8 Ms K said she was not happy with the way Mr R and his parents treated her and her family. After the civil wedding and Mr R’s text message to her as to his ‘not being the right guy’:

His mother called and said wrong things. I did not want to get married to him.

2.9 She said she did not live with Mr R after the civil marriage because according to religion and tradition:

We don’t live together. In the religion it was not a religious marriage so we could not live together. It was a ‘court marriage’. It happened on the Monday and then on the Wednesday he [Mr R] went back to Australia.

2.10 She said that the ‘court marriage’ took place ‘on Monday night and that was the engagement. He came to visit me after that for about five minutes. It was just five minutes at that time and then he flew to Australia’.

2.11 She added:

I think [Mr R] has gone back to Australia. He is not calling me so that does not make me happy. I will be happy if a nullity is granted. The way he and his mother were talking, I know that he won’t keep me happy.

3. Counsel’s Submissions

Counsel for Ms K submitted that a number of factors were illustrated by Ms K’s evidence:

• That she was pressured into marriage by family members, most particularly her father and father’s brother and although she was not explicit as to the nature of the pressure, it was evident from the other factors present that she was in a position of vulnerability vis-à-vis the ‘requirement’ by her family that she marry Mr R;
  
• Ms K’s age – being 21 years at the time of the marriage meant that she was not able to reject the pressures imposed by her father, father’s brother and family members generally;
  
• Her religious background was a significant factor generally, and particularly as the tradition within her religion is that children are to marry ‘very young’;
  
• Respect for family members was a significant factor in securing Ms K’s ‘consent’;
  
• Ms K signed the Marriage Certificate but she did not wish to do so and there was ‘no real consent’ in her so doing.
  

3.1 Counsel also referred to Ms K’s evidence that Mr R had indicated to her that he was ‘not keen on going ahead’ with the marriage.

3.2 Counsel said this was ‘not divorce by disguise’. As there was no real consent, by reference to all the above matters, the marriage should be declared void and nullity granted.

4. The Evidence & the Law of Nullity – ‘Duress’ & ‘Fraud’

Section 32 of the Family Law Act sets out the bases of an application for nullity. Relevant to the present application it says:

(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) ...

(iii) ...[1]

4.1 Does the evidence support the proposition, on the balance of probabilities, that Ms K did not validly consent to the marriage to Mr R by reason of duress or fraud within the meaning of the Family Law Act?

4.2 (a) Duress & Consent: In Fiji, nullity applications are heard against the backdrop of section 26 of the Family Law Act. Courts effecting the law under this Act are required to take into account:

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while the family is responsible for the care and education of dependent children;

(c) the need to protect the rights of children and to promote their welfare;

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage;

(e) the Convention of the Rights of the Child (1989) and the Convention on the Elimination of All Forms of Discrimination Against Women (1979): s. 26

4.4 Other cases dealing with nullity applications have emphasised the importance of this provision. The Court must take it into account, for the provision requires that this Court must have regard to it. Parliament has made section 26 one of the Act’s principal guiding provisions.

4.3 Section 26 refers to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This affirms that marriage is a relationship into which parties enter of their own volition. That is, no one is allowed by law to be forced into marriage: both parties must be willingly and must freely enter into the marriage relationship. This is affirmed, also, in the Declaration of Human Rights, to which Fiji is also a signatory.

4.4 As was said in RP and SAL (CasNo 08/SUV/0491, 19 August 2008):

Marriage is an agreement establishing a contractual relationship between two parties – the wife and the husband – expected to be entered into with full and free consent of each. Section 26 is ‘key’ and it makes international treaties pre-eminent also. The Fiji Constitution does likewise in its requirement that Constitutional and legislative interpretation take into account ‘developments in the understanding of the content of particular human rights’ and ‘developments in the promotion of particular human rights: s. 3; and see also s. 195(e): at para [4.2]

4.5 Further:

First, section 26 contemplates that ‘marriage’ is an ongoing relationship in the sense of parties cohabiting, establishing a family – with children in many or perhaps most cases, but even where there are not children, considering themselves to be and to relate to and in the world as a ‘family’ or ‘couple’.

Secondly, the international conventions and instruments emphasise the importance of agency in entering into the marriage relationship. Referred to explicitly in the Family Law Act, the Convention on the Elimination of All Forms of Discrimination Against Women is emphatic as to a woman’s ‘right to choose a spouse and enter freely into marriage’, this right to choose and the freedom of entering into marriage being ‘central to her life and her dignity and equality as a human being’: Article 16(1)(b) The freedom and rights of both parties – putative spouses, husband and wife – are proclaimed and preserved in the Universal Declaration of Human Rights which says marriage ‘shall be entered into only with the free and full consent of the intending spouses’: Article 16(2) These rights of both are recognised, too, in General Recommendation No. 21 of the Committee on the Elimination of All Forms of Discrimination Against Women, which says marriage should be founded on the ‘basis of equality of men and women’ with the ‘same right freely to choose a spouse and to enter into marriage only with their full and free consent’.

It is against these principles that section 32(2)(d)(i) as to ‘fraud’ and ‘coercion’ need to be interpreted and applied: at paras [4.4]-[4.6]

4.6 Ms K entered into an arranged marriage. There was no force, pressure or duress in the way of physical attack or abuse. Nor were there threats of such. Nor did Ms K’s parents or family members or any one of them threaten self-harm if she did not cooperate in the arrangement. She was not subjected to kidnap or confinement to bring about her ‘consent’. However, in the view of this Court, such actions are not necessary to found ‘lack of real consent’ within the meaning of section 32(2) (d)(i). What is necessary is to look at all the evidence within the context of contemporary Fiji society, taking into account the particular community within Fiji society from which the parties come.

4.7 This Court accepts that Ms K is a member of a community within Fiji which requires or at least has the strong expectation that marriage will occur when parties are in their early twenties or in some instances in their late teens. It is also accepted that there are strong family ties and traditions which contemplate arranged marriages as ‘the’ way in which marriages come about between the children of that community. Children are expected to obey their parents and to accept the ‘rightness’ of arranged marriage. This means that they may not question the arrangement or believe they simply must submit without argument. To argue is to offend against elders and family members and particularly against obligations to parental and paternal ‘right’.

4.8 Ms K said that she did not wish to marry. However, she considered herself obliged to do so because of the ‘pressure’ from her father and father’s brother, in particular. It was her father’s brother who made the arrangements, bringing forward Mr R as the bridegroom. On this, it appears that insofar as Ms K’s position in all this was concerned, he was not even a ‘prospective’ bridegroom – bluntly, she had no choice in the matter. She met him only some nine days before the civil marriage took place, with barely a chance to speak with him. When he asked her to marry him, she referred him to her father – clearly considering she had no right to make that determination for herself, despite the clarity in the law as previously enunciated as to the right of parties to decide when and whom they will marry.

4.9 Ms K did not stipulate ‘pressure’ except that it is evident from her evidence that she was under pressure: she did not know Mr R before he was introduced to her by her father’s brother and this was nine (9) days only before the civil marriage. On any reasonable view, to be told one is to marry an almost complete stranger with the wedding arranged and taking place only days after the initial meeting would place any person under pressure. Further, Ms K’s youth also appears to have played a part and can reasonably be taken into account as a part of ‘pressure’: she was 21 years at the time and the Court accepts that the younger a person is, generally the more difficult for them to resist the requirements of obedience to elders and parents, and to family members. Of course, those who are older may, through tradition, religion, custom and lack of external supports succumb, so that the fact a person is older will not necessarily militate against the proposition of ‘lack of consent’ due to obeisance to family directive: MIR and NNJ (FHC No. 08/2007L, 6 May 2008)

4.10 Further, Ms K’s father and father’s brother were present when she signed the Marriage Certificate – this can be accepted as placing pressure upon her, particularly taking into account the religious, cultural and traditional matters earlier adverted to. The expectation that she should marry because of her age and the age factor within her community as dictating marriage is another matter going to pressure, as was her father and father’s brother telling her ‘the boy is "good" and don’t say "no" to the marriage – the reasons Ms K says she signed the Marriage Certificate.

4.11 In my opinion, all the foregoing is sufficient to constitute ‘duress’ within the meaning of section 32(2)(d)(i) of the Family Law Act.

4.12 (b) Fraud: There is also the aspect of the religious marriage and its being held out to Ms K that a religious marriage would follow the civil marriage.

4.13 An extensive review of the law relating to fraud in nullity applications in Australia and the United Kingdom was undertaken by this Court in KN and EG (CasNo 0029/2008S, 6 May 2008), with its relevance to contemporary times and the situation pertaining in Fiji. I do not reiterate it here. Further, in FNB and NAM (CasNo HBM 20/08L, 23 June 2008) the United Kingdom law on ‘fraud’ in relation to nullity was found to be not particularly helpful. This was by reference to Moss v. Moss (Otherwise Archer) [1897] UKLawRpPro 23; [1897] P. 263 where it was said:

Error about the family or fortune of the individual though procured by disingenuous representations does not at all affect the validity of the marriage; in Ewing v. Whatley [1814] EngR 357; [2 Hagg Cons 175, 183]: ‘It is perfectly established that no disparity of fortune or mistake as to the qualities of the person will impeach the vinculum of marriage’; and in Sullivan v. Sullivan [2 Hagg Cons 283, at 248]: ‘The strongest case you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this Court to release him from chains which, though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has been induced: at 269-70

4.14 This Court observed in FNB and NAM that Moss v. Moss is inappropriate as a principle or ‘the’ principle authority in fraud-in-marriage analyses and interpretation of fraud-in-marriage today. Family law has changed extensively since 1897. In addition to changes in property law, maintenance, illegitimacy/legitimacy, child custody/residency and access/contact provisions and application, dissolution or divorce itself has undergone extensive change with the abandonment of criminal or quasi-criminal standards and implications. These are no longer relevant to dissolution or divorce and should no longer be relevant to nullity.

4.15 In the present case, one is faced with a young woman of 21 years who goes through a civil ceremony of marriage. This does not make her ‘married’ in the eyes of her community, her religion and her culture, albeit it does make her married in law. She cannot live with the young man. She cannot set up a household. She cannot engage in all the appurtenances, duties, obligations and benefits of marriage. All this, she cannot do until the religious marriage occurs. She is then faced with the renunciation by the young man and his family of the representation held out to her that a religious marriage will be held. She is thus placed in a situation of ‘limbo’ – married in the law, but not married. Such a situation is intolerable and it is highly unlikely that a young woman would wish to be in it. Of course, if a person does not want to marry, they may well be relieved that the appurtenances of marriage do not come into play. However, that does not refute the unsatisfactory nature of the situation in which such person is placed.

4.16 Even if s/he does (as here) not want to marry at all, it is difficult to accept that had Ms K known before the civil marriage that no religious marriage would in fact occur, she would have gone ahead with the civil marriage. Of course, it is highly unlikely that her parents would have countenanced such a circumstance, so she would not have been placed in the situation in any event. It remains unlikely that Ms K would not have made some protest, however mild in light of her duty to obey.

4.17 That she would not have ‘gone along’ in such a circumstance does not in my view contradict the holding that she was ‘pressured’ into the civil marriage and hence ‘consented’ under duress. That finding is based in part upon her religious beliefs and obligations. Those very same religious beliefs and obligations require her to go through a religious marriage after the civil marriage. Hence, to accept that she would not have gone through the civil marriage had she known no religious marriage would in fact occur is consistent with the very factors that resulted in her obedience to her elders in contracting the civil marriage. At the very least, she would (taking all the foregoing into account) have demurred had the proposition been put to her that she civilly marry without the prospect of a religious marriage.

4.18 ‘Fraud’ is to be interpreted according to civil law principles and precepts. The Court therefore finds that in holding out to Ms K that a religious marriage would follow the civil marriage, then reneging upon this representation, Mr R engaged in conduct which qualifies as civil fraud under section 32(2) (d)(i) of the Family Law Act. That Mr R may, as appears to be so from Ms K’s evidence, have been pressured into entering the civil marriage also does not undercut the import of his renouncing that part of the ‘agreement’ relating to the religious marriage.

5. Further Matters

The determination in this application is particular to the facts and circumstances here. The facts and circumstances of every application must be determined individually vis-à-vis the applicant or applicants therein. A factor that is relevant here is that the parties never lived together: Mr R appears to have returned to Australia several days after the civil ceremony and Ms K has not seen him since. She communicated with him little after his departure just as she had communicated little with him when he was in Fiji.

5.1 Had the parties cohabited, that would be a very different matter. As was said in KN and EG (CasNo 0029/2008S, 6 May 2008), parties must also be aware that if they remain in a marriage albeit at its inception there was a contended ‘fraud’, then the outcome may well be that ‘fraud’ is no longer relevant: at para [4.1]

5.2 It is further important that families recognise that they must respect the wishes of their children in regard to marriage. Marriage is an enormous commitment – it is traditionally expected to be a lifetime relationship. Not to listen to the wishes of children in this regard, or to expect them simply to comply, is not only unfair, but offends against the principles of international law and domestic law.

5.3 It may be accepted that parents believe they are doing the best for their children and have their children’s interests at heart. However, it is not in their interests to be obliged to make applications for nullity and to appear in Court with the attendant stress and distress. It is as well for parents to contemplate this possibility before they impose an arranged marriage upon a child who has a right to choose her or his marriage partner.

Declaration and Orders

1. The marriage of N K and Z M R conducted at Makoi on 22 December 2008 in the Republic of the Fiji Islands is declared void under section 32 of the Family Law Act.
   
2. The marriage is thereby annulled.
   
3. No order as to costs.
   

Justice J.A. Scutt

2/04/09

^[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.