Kemal & Kemal was a case of online dating gone wrong. The wife meet the husband online and ended up "married" after visting him in China. The wife claimed that the marriage had been obtained by fraud and sought a declaration of nullity.
The husband and wife met online in 2014, at this time the wife was living in Australia and the husband was living in China. The husband represented to the wife that he was a medical graduate student and was working in China as part of a research project for a Melbourne hospital.
In 2015, the wife and her mother travelled to China to visit the husband. Upon their arrival in China, the husband took the wife to buy a temporary international phone sim card. The husband took the wife to a government office building and asked the wife to give him her passport, claiming that it was necessary to obtain the sim card. The wife thought that this was “strange” but was unable to seek assistance as no one appeared to speak English.
The husband then requested for the wife to write the words “I’ve never been married before and I’m single” on a form (which was written in Chinese); the wife submitted to the husband’s request as she was advised by him that this was the local law and was required to get a sim card.
The following day, the husband took the wife to an embassy where he handed his and the wife’s passports to an embassy official. Again, the wife was made to write the words “I’ve never been married before and I’m single” on a form which was then stamped by the official.
The wife was understandably concerned and demanded the return of her passport; the husband stated that he required further assistance from the wife and warned that she “better be ready if you want to ever return home safe; you need your passports”. Subsequently, the husband produced an Australia Spousal Visa Application form and asked the wife to sign it. As it turned out, the husband was not Australian but had wished to work in Australia. He informed the wife that they were legally married.
Eventually, the wife and her mother regained possession of their passports and safely returned to Australia. The wife sought legal advice to confirm her marriage status and had the documents given to her by the husband translated. One of the documents was, in fact, a Certificate of Marriage.
The wife applied to the court for an annulment of marriage.
The question before the court was whether the marriage was null and void under the Marriage Act. Per section 23B(1)(d) of the Marriage Act., a marriage if void if it was obtained by fraud. The fraud must relate to the identity of the other party or as to the nature of the ceremony. It was uncontroversial in this case, that the marriage had been procured by fraud, relevantly:
- The marriage certificate was obtained in a foreign country, in a language that the wife could not understand;
- It was clear that the wife did not understand the nature of the documents she had signed;
- The wife was completely reliant on husband to explain the matters to her (the officials did not speak English and the wife did not speak Chinese);
- The husband did not explain the nature of the transaction; rather he had made misrepresentations about the transactions to her (i.e., he had fraudulently represented to her that the transactions were for a purpose other than marriage).
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