In the 2016 case of Walton & Esposito, the husband sought to annul his marriage after his wife left him immediately after obtaining Australian Citizenship.

This case was an application on behalf of the husband, for an order of nullity declaring his marriage to the wife void. The wife did not engage in the proceedings or attend court and the application proceeded undefended.

The Marriage

The husband and wife had a classic “mail order bride” relationship.

They were connected through mutual friends and started a correspondence in 2013. The husband and wife communicated daily and, following a cyclone in 2013 the husband began sending money to support the wife and her family.

The husband visited the wife in her country in February 2014, and the in April 2014 to May 2014 the wife travelled to Australia on a visitor’s visa to spend time with the husband and test their compatibility for marriage. On this trip, the wife told the husband that she did not want to have sex before marriage.

In later 2014 or early 2015, a prospective marriage visa was granted to the wife. The wife arrived in Australia on 9 January 2015. The husband and wife were later married. After the parties married, the wife said they that had rushed into the marriage too soon and suggested they wait until commencing intimate relations. On the 7 October 2015, two weeks after receiving notification of approval of the second stage of the marriage visa, the wife left the matrimonial home.

The Decision

The question before the court was whether the marriage was void pursuant to section 23B(1)(d)(i) of the Marriage Act. Section 23B(1)(d)(i) provides that a marriage is void where the consent of either party was obtained by duress or fraud.

For the purposes section 23B:

  • Fraud does not include fraud which induces consent but fraud as to the identify of the other party or the nature of the ceremony; and
  • Duress requires that the person was under actual oppression during the ceremony.

Here, the court concluded that the husband was induced to marry the wife on the basis of a variety of factors, including an intimate relationship, a view that the marriage would be for a significant period of time and that the wife would remain within. However, this did NOT constitute fraud or duress within the meaning of the Marriage Act.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.