IN THE HIGH COURT OF FIJI AT LAUTOKA
FAMILY DIVISION

ORIGINAL JURISDICTION
PRINCIPAL RELIEF

File No 93/2009L
HBM11/2009L

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

P D
Joint Applicant

AND:

R S C
Joint Applicant

Appearances:
Joint Applicant – Ms Din Person
Joint Applicant – Mr C in Person

Date of Hearing: 27 March 2009
Date of Judgment: 2 April 2009

JUDGMENT

Family Law Act 2003, s. 24 (jurisdiction); s. 26 (‘marriage’ under the Family Law Act); s. 30 (dissolution); s. 32(1) (marriage ‘void’ for nullity); s. 32(2)(c) (‘marriage not properly solemnized’); s. 32(2) (‘no real consent’); Marriage Act (Cap 50), s. 25 (witnesses to marriage and certificate); s. 36 (additional religious marriage); Parties marry against parents’ wishes; Civil marriage, no religious marriage; Marriage creates family disharmony; Parties decide against religious marriage; Parties seek to annul marriage; ‘Agreement’ of parties to nullity; Necessity for ground/s to be established on balance of probabilities; No ground of ‘not properly solemnized’; No ground of ‘no real consent’; Dissolution not nullity; ‘Agreement’ by parties no basis for grant of nullity (or dissolution); Law reform – male/female marriageable age differential – for review?

APS and DAS (FHC No. 0883/07, 14 January 2008)

FJN and MRK (HBM 004 of 2009L, File No. 0059/2000L, 1 April 2009)
IA and STD (HBM 37/08L; 08/BA/0085, 26 August 2008

JFB (aka JF) and MN (HBM 33/08L; File No. 249/2008L, 1 August 2008)
JF and MN (HBM 33/08L, File No. 240/2008L, 1 August 2008)

Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008)

RD and SS (08/NAN/0169, HBM 24/08L, 31 July 2008)
RK and VS (HBM 8/2008L, 27 August 2008)
RS and AS (No 1) ( Case No. 57/2008; HBM 10/08L, 8 May 2008)
RS and AS (No 2) (Case No: 57/2008; HBM 45/08L, 8 August 2008) 
RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008)

SH and BM (File No. 0572/2008S, 5 September 2008)
SSD and HAK (HBM 38/08L; 08/LTK/0273, 1 August 2008)
SNNA and SRM (FamCas No. 029/2008S, 2 June 2008)
SS and EM (File No. 0515/2008L; HBM 66/2008L, 3 January 2009)
SSR and AL (File No. 0579/2008S; 0579/SUV/08, 12 September 2008)

1.	LEGAL MARRIAGE AND NULLITY APPLICATION

The marriage between P D and R S C took place on 9 April 2008 at the Lautoka Registry of the Office of Births Deaths and Marriages. The nullity application was filed jointly by Ms D Mr C on 4 March 2009. The hearing of the application took place on 27 March 2009, time being abridged by the Court, taking into account it is a joint application, both parties were present on 27 March and its being explained to them that the Court would hear the application on that day as both were present and wished it to be heard.

1.1	The grounds stated in the application are ‘Marriage not properly solemnized’ and ‘No real consent given’. These grounds appear in the Family Law Act 2003 as follows: 

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)	the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;

(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 identify 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; …

1.3	Jurisdictional requirements under section 24 of the Family Law Act are met through Mr C’s being resident in the Republic of the Fiji Islands, as is Ms D, and their being citizens of Fiji. 

2.	EVIDENCE & GROUND: MARRIAGE NOT PROPERLY SOLEMNIZED?

Whether this ground applies must be determined by reference to the Marriage Act (Cap 5) and the Certificate of Marriage.

2.1	(a)	Marriage Act: The Marriage Act governs solemnization of marriage in Fiji. It provides in Part II – ‘Marriage Officers’ for the registration of persons as marriage officers. Amongst others, the Registrar-General or district registrar may solemnize marriage. In the present case, as the marriage was conducted at Lautoka Registry and has been duly registered with the name of the Marriage Officer appearing, it is accepted that the Marriage Officer was authorised in accordance with the Marriage Act to conduct the marriage between Ms D Mr C.

2.2	Part III – ‘Marriageable Age and Marriage of Minors’ provides, amongst other matters, for the age at which persons may legally marry in Fiji:

Marriageable age

12.	Any person may contract a valid marriage under the provisions of this Act if such person is, in the case of a male, of the age of eighteen years or upwards, or, in the case of a female, of the age of sixteen years or upwards.

2.3	The provision raises a question as to why the age should be different for males and females, a matter to which consideration may be given in light of section 38 of the Constitution which provides that discrimination on the ground of age is unlawful. It may be that the age for both should be 18 years of age, or it should be 16 years. This is a matter for Parliament and government. It does not arise in the present application.

2.4	Nor is there any question here of the marriage of minors. As indicated later through recitation of the matters covered in the Certificate of Marriage, both Ms D Mr C are above 18 years of age and were so at the date of the marriage.

2.5	Part VI – ‘Marriages’ covers the requirements as to the solemnization of marriages, including notice of marriage: s. 16; the need for a marriage to be solemnized within three months of notice: s. 18, by whom marriages are to be solemnized: s. 22; the power of marriage officers to ask for particulars: s. 24, and witnesses to marriage and certificate: s. 25

2.6	Information as to the parties and the particulars of marriage appear in the Certificate of Marriage. It is necessary to turn to it to assess the status of the marriage between Ms D Mr C for the purpose of section 32(2)(c).

2.7	(b)	Certificate of Marriage: The Certificate of marriage states:

•	Mr C was born on 9 June 1982 and was 25 years of age at the date of the marriage 

•	Ms Dwas 22 years at the date of the marriage, her date of birth being 11 June 1985

•	Mr C’s occupation appears as ‘Secondary School Teacher’

•	Ms D’s occupation is ‘Nurse’

•	Conjugal status for Mr C is ‘Bachelor’

•	Conjugal status for Ms D is ‘Spinster’

•	Mr C was born in Fiji at Lautoka Hospital and his usual place of residence is an address in Lautoka

•	Ms D was born at Nadi Maternity Unit in Fiji, her usual place of residence being an address in Nadi

2.8	The Certificate of Marriage also indicates in the required section the names of each party’s father and mother, including maiden names of the respective mothers. Names of the witnesses to the marriage appear, together with the name of the Marriage Officer. The Registration Number is 1040517, the date of registration is 9 April 2008, and the signature of the Registrar General of Births, Deaths and Marriages appears together with the Stamp of the ‘Registrar General Fiji’.

2.9	The remaining information on the Marriage Certificate confirms that the marriage was contracted in accordance with the law of Fiji, namely the Marriage Act. In addition to details including names of witnesses, the names of the parties’ parents and the Marriage Officer, the Marriage Certificate bears the stamp and signature of the Registrar General of Births, Deaths and Marriages.

2.10	Finally, it states:

On the date and at the place specified above, ISHA KIRAN DATT duly solemnized the marriage in accordance with the provisions of the Marriage Act between the parties specified above.

2.11	There is, therefore, no application of the ‘marriage not properly solemnized’ ground. This ground is not infrequently selected where parties have participated in a civil marriage ceremony but the religious wedding has not taken place. Therefore, they see that no ‘real’ marriage has taken place. This does not accord with the Marriage Act which governs civil marriage, which is ‘the’ legal marriage in Fiji. The Marriage Act does provide for religious marriage, however, as the provision says:

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.

2.12	However, the section goes on to say:

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

2.13	That is, civil marriage is the legal marriage and religious marriage is lawful but does not displace or replace civil marriage. A party civilly married is married whether or not a religious wedding has taken place.

2.13	In the present case as to the solemnization, the marriage of Ms D Mr C was and is a valid marriage under the law of Fiji. This ground must, therefore, be dismissed.

3.	EVIDENCE & GROUND – NO REAL CONSENT BY MISTAKE OR CAPACITY?

In addition to the evidence provided by the Certificate of Marriage as previously set out, both Ms D Mr C gave evidence. 

3.1	(a)	Mr C’s Evidence: Mr C said he and Ms D met two years ago at a wedding’. They then ‘dated for one year’. However:

We found out later that our parents were not happy with the relationship. We didn’t do the civil marriage with our parents. We had friends as witnesses.

3.2	Mr C referred to the Certificate of Marriage which notes the witnesses as persons who are not related to Ms D or Mr C, but are friends. This is confirmed in that the Marriage Certificate carries the names of their respective fathers and mothers (as earlier noted) which are different from the names of the witnesses.

3.3	Mr C said that after the marriage:

… there was a lot of family tensions and ‘bad mouthing’. No one was happy with what we had done. We were both emotionally disturbed and couldn’t do our work. My family was upset.

3.4	He said he was ‘sorry to be taking up the Court’s time’ but he and Ms D had realised their feelings for one another were ‘not love, but infatuation’. 

3.5	He and Ms D did not live together – as no religious weeding had taken place. They had been ‘hoping for the religious wedding this year’, said Mr C, however the families’ upset and the emotional drain and burden on himself and Ms D had led them (Ms D Mr C) to give up their intention of having a religious marriage, and to seek the nullity.

3.6	Mr C said he and Ms D had nominated ‘no real consent’ as the ground for nullity because at the time they had participated in the civil marriage ‘we thought it would work out but it was really disturbing me – I am a teacher and dedicated to my work, and I couldn’t concentrate’. He went on to say:

What point is there in holding onto something where the parents have given no consent. The final conclusion we reached was that we should go our own way. 

3.7	Asked about his parents and Ms D’s parents’ reaction and their wish that Ms D Mr C not marry and not have a relationship, Mr C said:

My cousin married Priya’s cousin. We met at that wedding. They [the cousins] are not happy so our parents think that our marriage won’t work out and are strongly objecting to that fact.

3.8	Mr C added:

We did not get socially married – our legal system says we are legally married but not so for our Indian culture. The main grounds – that there is no real consent – is that it is quite a big issue for a boy and girl to get married. There were no family members there and no consent from them. There were only four people at the civil wedding, at that time. None of our parents were there.

3.9	As Mr C was not represented, Ms D was given an opportunity to ask him questions should she wish, however, she declined to do so. After Ms D had given her evidence, Mr C gave further evidence which is included here.

3.10	Mr C said:

We were married in April. We did not spend time with each other after the marriage. Then, after a couple of months we were not talking to each other. We realised that a mistake was made. This will haunt us for the rest of our lives. Our life partners will be questioning always and not understanding, and people can be quick to judge. 

3.11	He said he was concerned about the future, because when he marries someone else, it will always be an issue if the marriage to Ms D is ended by dissolution (divorce) rather than by nullity. He said that he would like to avoid emotional disturbances going through the years because of a mistake made now. He was concerned about the implications for children born in the future, too, who would come to know (if dissolution/divorce rather than nullity ended the marriage to Ms D) that he had married in the past and had had a relationship before the marriage to whomever he would marry in the future and with whom he would have children. 

3.12	Mr C again apologised for ‘taking up the court’s time’ and emphasised that he would ‘make wiser decision in the future’.

3.13	(b)	Ms D’s Evidence: Ms D said she is a nurse. She said that Mr C’s recitation of what had happened and why she and he sought nullity of the civil marriage was ‘basically what happened’. She confirmed that she and Mr C ‘met at a wedding’. At that time, Mr C was living in Lautoka and Ms D was living in Suva. Hence there was ‘not much connection’ then. However:

After graduation, we got married and our parents did not like it. 

3.14	At the civil ceremony, she said:

There was just me, Ranil and two friends. Our parents were not there. Our parents did not know [we were getting married]. 

3.15	She said that after the civil marriage:

I was working in Nadi, shift work, and living at home. He [Mr C] was working in Ba so he was travelling to Ba each day. We ere just waiting for the traditional wedding. We were thinking of the traditional wedding that was supposed to happen this year. 

Then there were problems – my family did not like him so I didn’t inform them of the civil marriage. It gave me a lot of trouble and emotional disturbances at work. I couldn’t face my family. They were saying we shouldn’t have done it – and that made us believe it was better to go our separate ways.

3.16	Ms D said ‘there was nothing like that, no date’ when asked whether arrangements had been made, or were being made, for the religious wedding. She said that the thought of the religious wedding ‘was just between me and Ranil’. 

3.17	Her parents and their families ‘were not planning anything. They were not wanting us to marry’..

3.18	As to the ground ‘no real consent’, Ms Dsaid that she and Mr C were seeking the nullity because there was ‘no proper consent as our parents were not there and there was no religious wedding’.

3.19	Asked why, when the civil marriage took place on 9 April 2008, the application for nullity was not made until 4 March 2009, Ms D said:

In the middle we were not talking to each other. About April/May we were not talking to each other. We saw we were hurting each other’s life, and so we decided to make a joint application as we realised we were hurting each other.

3.20	As to what happened after the civil marriage, Ms D said:

We never stayed in a house together, it was not marriage as we were staying in the homes of our parents. We were not together, so we prefer to have a nullity [as opposed to dissolution].

3.21	As Ms D was not represented, Mr C was asked whether there were questions he would like to ask Ms D. He declined to do so, however, it was at this time that Mr C added the evidence recited earlier, as he wished to respond to the question why a nullity was sought rather than dissolution/divorce.

3.22	(c)	‘No Real Consent’ – ‘Mistake’ and Mental Capacity: There was no suggestion by the parties, nor any evidence, that the ground of ‘no real consent’ was intended to encompass section 32(2)(d)(ii) or (iii). That is, there was no basis, and no basis suggested, for a contention that Ms D or Mr C was ‘mistaken as to the identity’ of the other. Each knew the other and knew that it was s/he whom s/he was marrying. . 

3.23	Nor was there any contention or evidence supporting any application of section 32(2)(d)(ii) insofar as ‘mistake as to the nature of the ceremony performed’. Mr C’s evidence indicates his awareness that the civil ceremony was a marriage ceremony, albeit he and Ms D would necessarily go through a religious ceremony subsequently (which in the event did not occur) in order to be ‘married’ according to tradition, culture and religion. Similarly for Ms D– she was aware that the ceremony was a civil marriage ceremony, albeit to be ‘married’ in concert with tradition, culture and religion a religious marriage would be necessary. .

3.24	As to section 32(2)(d)(iii), again there was no contention and no evidence that Ms D or Mr C was ‘mentally incapable of understanding the nature and effect of the marriage ceremony’. Both are highly intelligent people, evident from their evidence and demeanour at all times. 

3.25	(d)	Conclusion – ‘Mistake’ & Mental Capacity: There is, therefore, no basis for the grant of an application of nullity as to ‘no real consent’ by reason of ‘mistake’ or ‘mental capacity’. 

3.26	However, the foregoing evidence needs to be taken into account in the context of the applicable principles and authorities to determine whether, on the balance of probabilities, ‘duress’ and/or ‘fraud’ under section 32(2)(d)(i) brought about Mr C’s consent to the marriage with Ms D, and/or Ms D’s consent to the marriage with Mr C.
 
4.	GROUND ‘FORCE’ AND ‘FRAUD’ IN NULLITY – NO REAL CONSENT?

The evidence provided by Ms D, Mr C and the Marriage Certificate must be taken into account in relation to this ground of ‘no real consent’. 

4.1	(a)	Fraud & Nullity: There is no suggestion of fraud in the marriage between Ms D Mr C. They married having known one another for some time, and do not contend that there was any non-disclosure of matters that could give rise to a contention that fraud occurred here. They planned a religious marriage, albeit no ‘concrete’ plans were in place, and the decision not to go ahead with the religious wedding is mutual. This is not a case where one party has held out to the other that a religious marriage will occur, then has reneged on that commitment, leaving the other as civilly married, yet not ‘wholly married’ or ‘married’ in accordance with the tradition, culture and religious beliefs of their particular community. Hence, it does not appear to me that there is any basis for nullity under section 32(2)(d)(i) insofar as it relates to fraud.

4.2	Clarification may also be important as to the position of the parties’ parents. That the parties did not disclose to their parents their intention to marry civilly, and that they went through the civil marriage ceremony without their parents knowing it was taking place and without their presence (whether as witnesses or otherwise), does not qualify as ‘fraud’ under section 32(2)(d)(i). That provision relates to the parties’ knowledge and understanding, representations and any misrepresentations about one another – so long as the misrepresentations are of a nature or kind that come into the scope of ‘fraud’, for example, RN and RH (CasNo 0247/2008L; HBM 32/08L, 1 August 2008) – widower status; RRS and AD (HBM 38/2007L; FamCas No. 07/TVA/0086, 5 August 2008) – divorcee status; IA and STD (HBM 37/08L; 08/BA/0085, 26 August 2008) – divorcee status. 

4.3	A failure to advise others that they intend to marry, or have fixed upon a date and time for a civil (or religious) marriage, does not constitute ‘fraud’ under the Family Law Act section 32(2)(d)(i). Under the law of Fiji, it is the parties themselves, their position vis-à-vis qualifying representations or misrepresentations to one another that may constitute ‘fraud’ for the purposes of section 32(2)(d)(i).

4.3	(a)	‘Duress’ and Nullity: The final aspect of ‘no real consent’ relates to consent procured by ‘duress’ which in decisions of this Court can be illustrated through pressure and/or force, interpreted broadly in accordance with civil law principles and precepts. Criminal law duress does not govern determinations under section 32(2)(d)(i) of the Family Law Act – that is, the civil standard of ‘balance of probabilities’ is what is called for, not ‘proof beyond a reasonable doubt’. Of course, if a party to the marriage or a parent or family member or marriage broker or some other person engages in criminal acts against a person to force or pressure them into marrying another person, that will satisfy the ‘duress’ provision of the Family Law Act. However, criminal conduct is not necessary to constitute fraud for the purposes of section 32(2)(d)(i).

4.4	There is no evidence that Mr C married Ms D because he was ‘forced’ or ‘pressured’ to do so. Nor is there evidence that Ms D married Mr C because she was ‘forced’ or ‘pressured’. Rather, the evidence is that Mr C and Ms D chose to marry and did so freely. That they did so without disclosure to their parents and found that their parents did not wish them to continue their relationship because of the breakdown in their respective cousins’ partnership (at whose wedding Ms D Mr C initially met) does not interfere with their own consent.

4.5	Mr C says that the ground ‘no real consent’ was selected because their parents did not consent to the marriage – they did not know, and hence did not agree to the civil marriage. When Mr C and Ms D planned to marry in a religious ceremony, their parents did not agree and did not wish them to do so. Their parents did not, therefore, consent to Mr C and Ms D’s civil marriage, nor to a religious marriage’s occurring in the future or indeed at any time. However, it is not the consent of parents which is within the scope of section 32(2)(d)(i) (or any of the ‘consent’ provisions), but the consent of the parties themselves. 

4.6	This was not an arranged marriage – that is, a marriage arranged by parents, relatives or other family members, a marriage broker or some other person, which may provide a basis for ‘lack of real consent’ under section 32(2)(d) of the Family Law Act. Rather, as noted, it was a consensual marriage in that the parties – Mr C and Ms D- made the decision of their own volition. 

4.7	This is different from the cases where ‘no consent’ is found because one or other or both parties do not consent by reason of force or pressure including religious, traditional and cultural pressure, and/or parental or family pressure, or the need to be obedient to parents or elders, as in, for example: APS and DAS (FHC No. 0883/07, 14 January 2008); Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008); JFB (aka JF) and MN (HBM 33/08L; File No. 249/2008L, 1 August 2008); JF and MN (HBM 33/08L, File No. 240/2008L, 1 August 2008); MIR and NNJ (FCC 08/2007L, 6 May 2008); RD and SS (08/NAN/0169, HBM 24/08L, 31 July 2008); RK and VS (HBM 8/2008L, 27 August 2008); RRS and DPD (FamCas No. 08SUV/0498, 19 August 2008); SH and BM (File No. 0572/2008S, 5 September 2008); SSD and HAK (HBM 38/08L; 08/LTK/0273, 1 August 2008); and SNNA and SRM (FamCas No. 029/2008S, 2 June 2008); SS and EM (File No. 0515/2008L; HBM 66/2008L, 3 January 2009); FJN and MRK (HBM 004 of 2009L, File No. 0059/2000L, 1 April 2009)

4.8	For Ms D Mr C, the circumstances more akin to RS and AS (No 1) ( Case No. 57/2008; HBM 10/08L, 8 May 2008) – nullity refused; RS and AS (No 2)(Case No: 57/2008; HBM 45/08L, 8 August 2008) – dissolution granted; and SSR and AL (File No. 0579/2008S; 0579/SUV/08, 12 September 2008) – nullity refused. 

4.9	As in the present case, in those cases, nullity applications were made where the parties had known one another prior to marriage. In RS and AS (No 1) and SSR and AL nullity was refused because the parties freely entered into marriage – going through the civil marriage ceremony voluntarily: their relationship was consensual, as was the marriage; they wanted to marry and did so, building upon a prior existing relationship. In RS and AS (No 2) the parties in RS and AS (No 1) subsequently applied for dissolution, which was granted. 

4.10	Unlike the circumstances of Ms D Mr C’s civil marriage, the parents of Ms RS and Mr AS, and Ms SSR and Mr AL were involved in marriage arrangements. This does not, however, impede the comparison between those marriages and nullity applications and the present application. The focus for nullity needs to be on the parties’ position vis-à-vis one another and their agreement to marry. As it was for Ms D Mr C, so too for RS and AS (No 1), RS and AS (No 2) and SSR and AL.

4.11	In RS and AS (No 1), RS and AS (No 2) and SSR and AL, the parties did not live together. However, because the ‘coming together’ was wholly voluntary, on the initiative of the parties, with the marriages arising out of the ‘boyfriend-girlfriend’ relationship already existing between them, there could not be said to be ‘pressure’ or ‘coercion’ in the nature of ‘duress’. That the parties married on the basis that religious ceremonies would take place later, which agreement was reneged upon by one party in each case, did not allow for a nullity grant by reason of ‘fraud’ because a relationship of support, caring, mutual attraction and appreciation, and commitment (albeit not a sexual or cohabiting one) had subsisted between the parties after the civil ceremony, albeit then breaking down. In each instance this then classified as a ‘marital breakdown’ rather than a ‘void marriage’.

4.12	In SSR and AL, Ms SSR and Mr AL came to know one another through their paidwork. Mr AL asked Ms SSR to marry him. After the civil marriage, the parties did not live together, awaiting the religious marriage. Between the civil marriage and the religious marriage (which never took place), Mr AL met and became involved with another partner. He then reneged on his commitment to participate in a religious marriage with Ms SSR. They then jointly sought annulment of the civil marriage. This could not be granted for, as noted, they had consented to the civil marriage freely and without pressure or coercion. Hence, section 32(2)(d)(i) did not apply as to ‘duress’. Nor did it apply as to ‘fraud’, for although Mr AL had changed his mind about the religious marriage, that change of mind occurred in circumstances where there was a commitment to the civil marriage by both parties, and there was a breakdown in the relationship because of Mr AL’s interest in someone else, and his desire to form a union with that other person. That sort of situation occurs not infrequently in marriages, and the solution is to seek dissolution (divorce), not annulment. Further, Ms SSR decided she did not wish to go through with the religious marriage, either – so there was a mutual renunciation of this commitment.

4.13	In RS and AS (No 1), the parties met through their paidwork and became committed to one another as ‘boyfriend’ and ‘girlfriend’. They decided they wished to marry and went through the civil ceremony, with a religious wedding planned for some months hence. Before the religious marriage took place, Ms AS went abroad with her mother, who was seeking medical attention overseas. At that time, Ms AS and Mr RS were in a supportive and close relationship although not living together because that required the religious marriage. After her return from overseas, Ms AS found that the friendly and supportive relationship with Mr RS broke down. This, then, was not a case where nullity could be granted. Its having been refused, the parties applied for dissolution and that was granted in RS and AS (No 2).

4.14	The present case is, similarly, to be brought within dissolution provisions rather than nullity provisions.

4.15	Here, although the parties have not lived together (awaiting the religious marriage which is not now intended to occur), they freely consented to the civil marriage and intended to participate in a religious marriage. The religious marriage will not happen, because the parties do not wish it to: they have each made a decision not to go ahead with the religious marriage because of the family disruption and emotional turmoil that has been a consequence of the civil marriage. This is not a case of ‘no consent to marriage’ but a case of ‘breakdown’ in the relationship and a decision to end the civil marriage because of emotional turmoil arising because of the civil marriage, and the family disruption that occurred as a consequence of that marriage. 

4.16	The Court is mindful of the parties’ circumstances – that they believe they made a mistake in marrying through the civil ceremony. The Court has also borne in mind the concerns expressed as to the future and any future marriage and children, particularly by Mr C. The Court recognises and acknowledges Ms D Mr C’s concerns – sincerely and eloquently expressed as they were. The Court is, however, bound to apply the law through the Family Law Act and the Marriage Act,. The Court is bound to uphold the law of Fiji. Section 32 of the Family Law Act and particularly by the provisions as to ‘no real consent’, their meaning and application as set out, the words of section 32(2)(d), the interpretation of the law, and the authorities binding the Court. 

4.17	Taking into account all this, the Court is bound to refuse the application.

5.	DISSOLUTION APPLICATION

As the nullity application cannot be granted because the civil marriage does not classify as ‘void’ within the meaning of section 32 of the Family Law Act, if the parties wish to end the civil marriage by reason of its having broken-down irretrievably, then they can make application to this Court for dissolution under section 30 of the Family Law Act.

5.2	The marriage between Ms D Mr C took place on 9 April 2008. In light of the evidence provided to the Court in the present application, and upon the authority of RS and AS (No 2)(Case No: 57/2008; HBM 45/08L, 8 August 2008), the parties could make their application for dissolution at some time in April 2009 or afterwards, so long as it is one year and a day after the date of the marriage. 

5.3	Under the Family Law Act, an application for dissolution may be filed in the Magistrates Family Court or in the High Court. As both Ms D Mr C have given evidence already before this Court, it may be of benefit to them to file the application or dissolution in this Court so that it can be heard by the High Court in Lautoka. This Court will already have the material present in this nullity application and it will not therefore be necessary for Mr C or Ms D reiterate all they have said in the present proceedings.

5.4	The onus will remain for them to establish that on the balance of probabilities the relationship between them arising out of the civil marriage has irretrievably broken down; that they are unable to reconcile and the relationship breakdown has subsisted for the requisite period of 12 months or more. 

ORDERS

1.	The application based upon section 32(2)(c) of the Family Law Act 2003 is dismissed.

2.	The application based upon section 32(2)(d) of the Family Law Act 2003 is dismissed.

3.	The application for nullity of the marriage of P D and R S C taking place at Lautoka in the Republic of the Fiji Islands on 9 April 2008 is refused.

4.	No order as to costs.

Jocelynne A. Scutt
Judge

Suva 
2 April 2009