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Sanjesh v Sharmila [2014] FJHCFD 5; Family Case 0579 Suv of 2013 (3 July 2014)

IN THE FAMILY DIVISION OF THE HIGH COURT

AT SUVA

JUDGMENT

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MARITAL STATUS PROCEEDINGS – APPLICATION FOR AN ORDER FOR NULLITY – application by husband and wife on the ground that the wife’s consent to marry was not a real consent as it was obtained by duress - the ground for nullity established- application for an order for nullity granted-no order as to costs.

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Legislation:

Family Law Act No. 18 of 2003.

Marriage Act Cap. 50.

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Cases/Texts Referred To:

Brodie v. Brodie [1917] P. 27.

H. v. H. [1953] HCA 97; [1954] P. 258.

Silver (orse. Kraft) v. Silver [1955] 1 W. L. R. 728.

Morgan v. Morgan (orse. Ransom) [1959] P. 92.

Scott v. Scott (orse. Fone) [1959] P. 103.

Szechter (orse. Karsov) v. Szechter [1971] P. 286.

In the Marriage of Suria (1977) 29 F. L.R. 308.

In the Marriage of Otway [1987] F.L.C. 91-087.

Vervaeke (formerly Messina) v. Smith [1983] 1 A. C. 145.

In the Marriage of Hosking [1994] FamCA 87; (1994) 121 F.L.R. 196.

Griffith v. Griffith [1994] I.R. 35.

Leonards v. Leonards [1961] VicRp 57; (1961) 2. F.L.R. 111.

Parojcic (orse. Ivetic) v. Parojcic [1958] 1 W. L. R. 1280.

Scott (falsely called Sebright) v. Sebright [1886] UKLawRpPro 51; (1886) 12 P.D. 21.

Cooper (falsely called Crane) v. Crane [1891] p. 369.

Re Meyer [1971] P. 298.

Singh v. Singh [1971] p. 226.

Singh v. Kaur (1981) 11 Fam. Law 152.

Hirani v. Hirani (1982) 4 Fam. L.R (Eng.) 232.

In the Marriage of S [1980] FamCA 27; (1980) 42 F.L.R. 94.

In the Marriage of Teves and Campomayor [1994] FamCA 57; (1994) 122 F.L.R. 172.

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Dickey, A, “Family Law” 4^th Edition (2002) Lawbook Co; Sydney.

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Case Background

1. in 2013 the parties filed an application for an order that their marriage which was solemnised at Suva Registry in 2012 be nullified on the ground that the wife did not provide her real consent to the marriage as the same was obtained by duress.

The Law

2. Under s. 32 of the Family Law Act, a party can apply to have the marriage nullified on the grounds that the marriage is void.
3. The first limb of section 32 (2 (d) (i) of the Family Law Act states that a marriage is void if the consent of either party to the marriage is not a real consent because it was obtained by duress.
4. It is fundamental to marriage that both parties consent to being joined together as husband and wife. A marriage is a “voluntary union”. The concept of voluntariness is an essential ingredient in the definition of marriage under the laws of Fiji Islands: s. 15: Marriage Act:

“Marriage in Fiji shall be the voluntary union of a man and a woman to the exclusion of all others”.

5. What is it that each party to the marriage must give real consent to? There are two possibilities here. Either the parties are required to consent simply to entering into formal marriage relationship or they are required to consent to living with the other party in the way normally expected of a husband and wife.
6. Australian and English Courts have always refused to take notice of any understanding by parties to a marriage concerning the future course of their marriage: Brodie v. Brodie [1917] P. 271; H. v. H. [1953] HCA 97; [1954] P. 258 at 267-269; Silver (orse. Kraft) v. Silver [1955] 1 W. L. R. 728; Morgan v. Morgan (orse. Ransom) [1959] P. 92; Scott v. Scott (orse. Fone) [1959] P. 103; Szechter (orse. Karsov) v. Szechter [1971] P. 286 at 296; In the Marriage of Suria (1977) 29 F. L.R. 308 at 314; In the Marriage of Otway [1987] F.L.C. 91-087.
7. There is accordingly no doubt that the consent is simply consent to enter into a formal marriage relationship, and nothing more. As Lord Hailsham said in Vervaeke (formerly Messina) v. Smith [1983] 1 A. C. 145 at 152, concerning the corresponding law in England:

“ The fact is that in the English law of marriage there is no room for mental reservations or private arrangements regarding the parties’ personal relationships once it is established that the parties are free to marry one another, have consented to the achievement of the married state and observed the necessary formalities”.

8. Lindenmayer J put it in the more recent Australian case of In the Marriage of Hosking [1994] FamCA 87; (1994) 121 F.L.R. 196 at 207:-

“Should a court ever be entitled to say that a party’s reasons for marriage are so improper that it will declare their marriage void? The answer, in my view, must be a resounding ‘no’”.

9. What constitutes duress, however, is a matter of degree, and herein lies the basic problem concerning this part of the law on nullity. As Haugh J. observed in the Irish case of Griffith v. Griffith [1994] I.R. 35 at 42, duress may begin from a gentle form of pressure and end up with physical violence accompanied by threats of death.
10. The courts have consequently had to determine at what point constraint upon a person to marry is so severe as to nullify that person’s consent to the marriage.
11. In considering this problem, courts have consistently distinguished duress from lesser forms of pressure. So in Leonards v. Leonards [1961] VicRp 57; (1961) 2. F.L.R. 111 a reluctant bridegroom claimed to have marred simply because he had wanted to placate his father and mother, who desired the marriage, and that he was a tormented person whose heart was not in what he was doing, and that he was under a considerable emotional stress. The court held that pressure of this kind did not constitute duress.
12. On the other hand, in Parojcic (orse. Ivetic) v. Parojcic [1958] 1 W. L. R. 1280, a father, a Yugoslav refugee, ordered his daughter to marry a man chosen by him, who was another Yugoslav refugee, and he threatened to send her back to Yugoslavia against her wishes if she refused. He even hit his daughter in an argument over her refusal to marry the man in question. The court found that the girl had terrified into obedience to her father and that the ensuing marriage accordingly void on account of duress.
13. In England, the degree of oppression that constitutes duress for the law of nullity has changed over the years. Until 1970, the two leading cases on this matter were Scott (falsely called Sebright) v. Sebright [1886] UKLawRpPro 51; (1886) 12 P.D. 21 and Cooper ( falsely called Crane) v. Crane [1891] p. 369.
14. In Scott’s case, a wealthy young lady was induced by her suitor to put her name to a number of bills of exchange to meet some of his accommodation expenses. The young lady was subsequently pressed by discounters to pay these bills, with writs being issued against her and bankruptcy proceedings threatened. As a result of all this, she became both mentally and physically ill. The suitor, a true Victorian bounder, then told the young lady that if she married him he would make appropriate arrangements with the discounters, but if she refused he would not. Moreover, he said that if she refused to marry him he would falsely accuse her to her mother “and in every drawing-room in London” of having been seduced by him. He forcibly took her to a registry office and told her that he would shoot her if she did anything to show that she was not acting of her own free will.
15. The marriage at the registry office was held to be a nullity as the young lady had been reduced by mentally and bodily suffering to a state in which she was incapable of offering resistance to the respondent’s coercion and threats. In particular, the judge held that there can be no consent to marry if a party is in such a mental state of incompetence, whether through natural weakness of intellect or from fear (whether reasonably held or not), that he or she is unable to resist the pressure improperly brought to bear.
16. The facts of Cooper were as Victorian as the previous case. There a man took a young lady to a church, where he had arranged by stealth for marriage to take place. Outside the building he said to her “you must come into this church and marry me, or I will blow out my brains, and you will be responsible”. The young lady was so alarmed at this, for she knew he was in the habit of carrying a revolver, that she complied with his demand. The judge held that for the wife to avoid the marriage on the ground of duress, she had to show that her mind was so perturbed by terror that she did not understand what she was doing, or alternatively that although she understood what she was doing, her powers of volition had been so paralyzed that she had succumbed to another’s will. On the facts of the case, this was not established.
17. From 1970 until 1982, the English courts substantially restricted the nature of the duress that could invalidate a marriage. The leading case in this regard was Szechter (orse. Karsov) v. Szechter (supra). The facts of this case involved both actual imprisonment and a threat of immediate danger to the petitioner’s life. The petitioner was a woman in poor health who had been imprisoned in appalling conditions under communist rule in Poland for ‘anti-state activities”. Her subsequent marriage was a device, to which the respondent was a willing party, to enable her to leave Poland. There Sir Jocelyn Simon P. held that for the purposes of the law on nullity, the cause of the duress had to be a threat of immediate danger to life, limb or liberty. In particular he said:

“It is, in my view, insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock”.

18. It may accordingly have been because of the special facts in that case, which the judge described as involving “a situation of hardship brought about by heroism in the teeth of cruelty and oppression”, that Sir Jocelyn Simon referred to the need for a threat of immediate danger of life, limb or liberty. However, be that as it may, the formulation of the law was consistently followed in England until 1982.
19. Only two qualifications were judicially suggested to the law as stated in Szechter (orse. Karsov) v. Szechter. The first was that a present likelihood of future danger, rather than a threat of immediate danger, to life, limb, or liberty would suffice and the second was that ‘danger to limb” includes any serious danger to physical or mental health”: Re Meyer [1971] P. 298 at 306-307.
20. During the 12 years from 1970 to 1982, the test of duress in Szechter (orse. Karsov) v. Szechter proved to be very restrictive in many circumstances involving the overbearing of a party’s will. Prominent among these were situations involving arranged marriages. In England, as in Australia, immigrants often wish to continue to practice the social traditions and customs of their children. The question has thus arisen in both countries in recent years of what degree of parental or communal pressure will vitiate an arranged marriage to which a child is an unwilling party.
21. In two English cases concerning arranged marriages, Singh v. Singh [1971] p. 226 and Singh v. Kaur (1981) 11 Fam. Law 152 the Court of Appeal approved the test laid down in Szechter and held that duress would nullify an arranged marriage, like any other, only if the mind of the party was so overborne by fear caused by a threat of immediate danger to life, limb or liberty that the constraint destroyed the reality of the consent to marriage. In neither case was such duress established.
22. In the subsequent case of Hirani v. Hirani (1982) 4 Fam. L.R (Eng.) 232, however, the Court of Appeal expressly declined to follow the law as stated in Szechter. Without referring to Singh v. Singh or Singh v. Kaur, the Court of Appeal held that the crucial question was simply “whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual”. The court expressly held that there was no requirement of any threat to life, limb or liberty in order for there to be duress for the purposes of the law of nullity. In the light of the facts of the case, the Court of Appeal found that the will of a 9 year old Indian woman had been sufficiently overborne by her parents, who had arranged her marriage in order to prevent her marrying a member of another religion, to vitiate her consent and thus invalidate the marriage.
23. The Australian Courts have followed the English definition of duress until in the case of In the Marriage of S [1980] FamCA 27; (1980) 42 F.L.R. 94. There Watson J. not only declined to follow the strict test in Szechter but went so far as to relax the more liberal principles in Scott and Cooper. The facts of the case were that a girl aged 16 succumbed to parental pressure and went through an arranged marriage in a Coptic Orthodox Church in Australia. The girl had been born in Egypt and had come to Australia with her family when she was eight. The marriage had been arranged in accordance with Egyptian Coptic traditions. The girl said in evidence that she had not wanted to go through with the marriage but that her parents had insisted and she could not stand up against them. The judge found that “she was caught in a psychological prison of family loyalty, parental pressure, sibling responsibility, religious commitment and a culture that demanded filial obedience... if she had ‘ no consenting will’ it was because these matters were operating-not threats, violence, imprisonment or physical constraint”.
24. In the Marriage of Teves and Campomayor [1994] FamCA 57; (1994) 122 F.L.R. 172, Lindenmayer J. had no hesitation in following the decision in the Marriage of S. He said:

“ It can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent”.

The judge in this case also emphasized that it is duress at the time of marriage ceremony with which the law of nullity is concerned, and not duress at some time earlier unless the effect of this continues to overbear the will of a party to a marriage ceremony at the time of the ceremony itself.

The Evidence

25. Only the wife gave evidence in this case. She testified that her husband’s family is her family friends. The husband was his very good friend. They came from overseas to visit them. Her father’s birthday fell during their visit and so a birthday party was organised. During the party, it was suddenly announced that they would be getting legally married. Both the husband and she were shocked as they were never told anything about the marriage or asked of their opinion. Their parents had thought that because they were good friends they wanted to get married. They even did not know that they did not want to go through the marriage. Their parents thought of giving them a surprise thinking that they would be happy with the surprise.
26. There were so many family and friends gathered that day and both of them did not want to embarrass their parents. It would have caused their parents a lot of humiliation as what they did was unintentional thinking that they would be happy with the marriage.
27. Feeling obliged to keep their parents dignity intact they both went through the civil union. The very next day both families had a meeting and they both told their parents that they were only friends and not prepared to be married. Their parents regretted taking the action for them and decided to support them in filing an application for nullity.

The Determination

28. This is not a case where I would say that there was pressure by the parents on their children to get married but whatever they did thinking would be a surprise and bring happiness to their children turned out to cause the children mental oppression that without wanting to, they went through the civil union.
29. From the children’s perspective it would have, and I find that indeed it would have, caused the family of both sides great embarrassment and humiliation to announce the marriage and then call it off the very next minute. The parents would have had their happiness turned into a depressing situation.
30. Thinking of the consequences that would flow from refusing to get married, the children agreed to go through the civil union despite not wanting to.
31. I find that this case satisfies the test in In the Marriage of S [1980] FamCA 27; (1980) 42 F.L.R. 94 in that the wife was caught in a psychological prison of family loyalty and she went through the marriage. She gave consent to marry only to save the reputation of her parents and her family. If it was not for the family she would not have gone through the marriage and the consent that she gave, I find, was not her real consent.

The Final Orders

32. I therefore grant the application for an order for nullity

33. There shall be no order as to cost.

ANJALA WATI
Judge
03.07.2014

To:
1. Applicant in Person
2. Applicant II in Person
3. File Number: 13/SUV/0579