"I... err... do" - Voiding marriages & arranged ceremonies

We live in a society that values individual liberty. The law recognises people as free. The law assumes we are free to make decisions and shape our lives how we see fit. Of course there are exceptions, like children, who we recognise aren't psychologically developed enough to make decisions on their own behalf. For the most part though, we want individual freedoms to be maximised, not minimised. The law doesn't like it when people are forced to do things against their will. This runs against the desired value of individual freedom. Think of a contract signed with a gun pressed to one's head. No good, says the law. What then of arranged marriages? Can a marriage be set aside - nullified - because one of the parties didn't freely consent to it?

The short answer is yes. It will depend (and it always does) on the individual facts of the case. Commonly, "freely given consent" - let's call it real consent - will not be given in circumstances where someone someone is "forced" to say yes. This is to say that consent is not real if it is given under duress. But what does it mean to be forced to say I do? Is it having a gun to one's head? Blackmail? What about only saying yes because you worry you'll let someone down? Below, we look at two cases that reveal some interesting points about this area of law.

The cases

The first case was about a 68 year old Australian man who, through a mutual contact, arranged to marry a 31 year old woman from overseas. Unfortunately for him, his happily ever after turned into happily-until-the-wife's-visa-was-granted. For reasons we explain below, the man's marriage was not voided. Though, as will be explained, a marriage nullity is not the only way (and not usually the most effective) to end a marriage anyway. You will see that this man would have been better with a simple divorce.

The second case concerned a 25 year old Indian male who's uncle Hitch arranged for a bride to wed him. As part of their Indian culture, a grand Roka ceremony would seal their engagement and a civil Australian ceremony would soon follow. Unfortunately for the bride-to-be, Romeo had other plans and decided his heart belonged elsewhere. Despite his attempts to abort mission, the uncle was persistent and both the cultural festivities and the civil union went ahead. The uncle refused to to break his word to the bride's family. The deal was final, the uncle thought. However one day it all became too much for Romeo. He dropped a bomb to his new wife and confessed his unlove. He deeply apologised for going through with it all and not backing out earlier. Could Romeo void their bond?

Walton v Esposito [2016]

Our first case concerns Mr. Walton, the man who was promised the world by his new bride, only to see her leave months later upon her Australian visa being approved. The husband alleged that the marriage was a scam, arranged only for the wife to enter Australia and secure a visa.

The wife came to Australia on a visitor's visa. On determining he was the one, she told him that any intimate relationship would have to wait till the knot was tied. Some time later, the marriage deal was sealed through a civil ceremony. Unfortunately for the husband, the wife did not honour her terms. She told him no intimacy until later as they had rushed into things, she said. A further nine months should do it. One day, after nine months of waiting, the husband came home to a wife-less home. The wife had packed up and left. The husband then made an application to the Court alleging a fraudulent wedding. He said she had led him to believe that things would be different than what they had become. He believed they would have an intimate relationship and live happily after after. It was all a fraud - a sham! he said.

Next...

While the Court saw the husband's situation as unfortunate, they did not null his marriage due to fraud. The Court said there had to be something fraudulent happen at the ceremony itself that made his consent not "real". Unless there was something such as impersonation, fraud could not be found. Despite him expecting the marriage to be something better than it was, the Court could not find this a ground for fraud.

The husband wanted to marry. It was undeniable that his consent was freely given. Even though the parties had different intentions for the marriage, his consent was still freely given. His choice was to marry this woman and that is what mattered. Despite his reasons for that choice not being realised (I.e. a long marriage, an intimate relationship), the Court did not see anything fraudulent about the marriage.

What was of utmost importance when questioning the validity of a marriage based on fraud or duress, is that the giving of consent at the ceremony is the act which the Court must concern itself with.

In the next case, we will see a different scenario play out.

Nagri v Chapai [2012]

Our 25 year old Indian husband had a different set of circumstances. It couldn't be said that he was all for his wedding. His "I do" was only secured because his overbearing uncle managed to wear him down enough. Under no circumstances would the uncle break his word to the bride's family. The show had to go on. The husband's mother also encouraged the wedding, despite the husband protesting that his heart belonged elsewhere.

The Court acknowledged that marriages have, historically, been voided on grounds of duress. That is, a force or influence outside of the individual that "makes them do something they don't really want to do". It was commonly held that this had to come in the form of a threat, and that the individual had to feel some fear. Though this didn't apply in this case. The uncle in wasn't putting a gun to the husband's head. Nor was there any evidence that the husband felt fear for him. So how did the Court rule?

The Court had close reference to a similar case, In the Marriage of S. This case was about a teenage girl forced to enter into a marriage union by her parents. What was significant was that the girl was never made to fear, for her safety or otherwise. Not evidence of violence or abuse. The only fear you could make out was a type of emotional fear, that of letting her parents down. This stemmed from a bond between her and her parents which was so strong, defined by such love, affection and trust that the girl could not even think of saying no to her parents. In any event, in the Court's opinion, fear was an inappropriate standard. Not everyone that is under duress feels fear. The Court thought it better to use the term "oppression" and saw that the girl was caught in a "psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and culture that demanded filial obedience". The Court found that, if someone is oppressed mentally by another person, this could be enough to find duress, regardless of the motivations of the outside party.

What of the Indian husband, then? Was his case sufficiently similar to that of the teenage girl to have his marriage set aside?

Yes. The Court found that the overbearing uncle was the husband's oppressor. To some extent the husband's mother as well, but it was mainly the uncle. The uncle pulled the strings too tightly and gave the husband no room to move. The husband only went through with the wedding because he felt obliged to. Despite him being 25 years old and arguably perfectly capable of making his own decisions, the outside influences were declared oppressive enough as to make his consent "unfree". The marriage was nullified - end of that love story.

Why get a nullity instead of a divorce?

Despite divorce becoming popularised and less stigmatised than before, some people still regard it as a shameful and perhaps morally questionable. After all, marriage is at the very least a promise, the breaking which of which may be seen as a negative representation of someone's character. Not to mention our ties to English history where divorce was not available to couples in the 16th and 17th centuries. Annulments in those times were the only way a marriage could be dissolved, and to get one you needed to prove adultery or cruelty (and if you were the wife, both!) People today may opt for a nullity because it does not carry all the historical and psychological baggage that divorce does.

At Vietnamese Family Lawyer we deal with both nullities and divorce applications. Regardless of the application, we always advise our clients based on the individual facts of their case, desires and expectations. If you have a divorce enquiry, contact us on 0450 204 240 (all Sydney & Melbourne enquiries).