[ { "key": "AGMXFIX2", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/AGMXFIX2", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/AGMXFIX2", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/QXACB3HT", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "AGMXFIX2", "version": 1, "parentItem": "QXACB3HT", "itemType": "note", "note": "\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Considered\"\"\"\"\"\"Batty, In the Marriage of\"\"\"\"\"\"(1986) 83 FLR 153; (1986) 10 Fam LR 688; (1986) FLC 91-703\"\"\"\"\"\"FamCA\"\"\"\"\"\"7/2/1986\"\"\"\"\"\"\"Positive\"\"
\"\"
\"\"Considered\"\"\"\"\"\"Falk, In the Marriage of\"\"\"\"\"\"(1977) 15 ALR 189; (1977) 29 FLR 463; (1977) 3 Fam LR 11,238; (1977) FLC 90-247\"\"\"\"\"\"FamCA\"\"\"\"\"\"30/6/1977\"\"\"\"\"\"\"Cautionary\"\"
\"\"
\"\"Considered\"\"\"\"\"\"Pavey, In the Marriage of\"\"\"\"\"\"(1976) 10 ALR 259; (1976) 25 FLR 450; (1976) 1 Fam LR 11,358; (1976) FLC 90-051\"\"\"\"\"\"FamCA\"\"\"\"\"\"15/6/1976\"\"\"\"\"\"\"Cautionary\"\"
\"\"
\"\"Considered\"\"\"\"\"\"Todd, In the Marriage of (No 2)\"\"\"\"\"\"(1976) 9 ALR 401; (1976) 25 FLR 260; (1976) 1 Fam LR 11,186; (1976) FLC 90-008\"\"\"\"\"\"FamCA\"\"\"\"\"\"12/3/1976\"\"\"\"\"\"\"Negative\"\"
\"\"
\"\"Considered\"\"\"\"\"\"Crabtree v Crabtree (No2)\"\"\"\"\"\"[1964-5] NSWR 56; [1964] ALR 820\"\"\"\"\"\"NSWSC\"\"\"\"\"\"27/2/1964\"\"\"\"\"\"\"Positive
", "tags": [], "relations": {}, "dateAdded": "2010-03-12T01:25:42Z", "dateModified": "2010-03-12T01:25:55Z" } }, { "key": "QXACB3HT", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/QXACB3HT", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/QXACB3HT", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "QXACB3HT", "version": 1, "itemType": "letter", "title": "IMPORTANT CASES", "creators": [], "abstractNote": "", "letterType": "", "date": "", "eventPlace": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "archive": "", "archiveLocation": "", "shortTitle": "", "language": "", "libraryCatalog": "", "callNumber": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T01:25:15Z", "dateModified": "2010-03-12T01:25:41Z" } }, { "key": "7EXDPUBM", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/7EXDPUBM", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/7EXDPUBM", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/WQEXC8PQ", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "7EXDPUBM", "version": 1, "parentItem": "WQEXC8PQ", "itemType": "note", "note": "
The wife applied for a dissolution of marriage on the ground of marital breakdown within the meaning of s 48 of the Family Law Act 1975. The husband and the wife were still living in the same house, but sleeping in separate rooms. The husband opposed the application on the basis that the marriage had broken down less then twelve months before the application.
\n

 

\n
Held: Application dismissed. It is possible for a marriage to have broken down even though the parties are still living in the same house, and have not physically separated (Pavey v Pavey (1976) 25 FLR 450). What must be shown is a breakdown of the marital relationship, or consortium vitae, which may consist of a number of elements. This consortium vitae can be broken down by a unilateral act of one of the parties. However, on the facts, the applicant's marital relationship had not broken down but had still existed within twelve months of the application.
\n


V Haldeman, for the applicant.
O M Kiernan, for the respondent.

Cur adv vult


7 February 1986

Wilczek J.

The parties in this case were married at West Melbourne in the State of Victoria on 19 December 1970. The wife filed an application for dissolution of marriage on 6 December 1985.

The husband was born in Egypt on 1 January 1943 and first entered Australia in 1963; the wife was also born in Egypt, namely on 19 October 1949 and first entered Australia in the year 1968.

Having heard both the applicant wife and respondent husband give oral evidence, it is clear to me that the parties have a reasonably good command of the English language provided the terminology used in questions addressed to the parties remained reasonably unsophisticated.

The wife, in her application for dissolution of marriage, asserts that \"the husband and wife separated under the same roof on or about 30 September 1984 when the parties commenced sleeping in separate rooms\". In support of her application, the wife filed a separate narrative affidavit sworn by her on 3  December 1985.

The acknowledgement of service documents as signed by the husband suggests that the husband was served on 12 December 1985. He failed to file an answer within the time prescribed by the Family Law Rules 1984 (Cth), however, he appeared represented by counsel, on the return date of the application, 30 January 1986 and sought leave to file an affidavit sworn by *154 him on that day. The matter arose in the pre-trial (duty) list of business before this Court; in anticipation that leave would be granted to the husband to file his affidavit, by the time the matter came before me, an affidavit in reply to the husband's affidavit had been prepared, sworn by the wife also on 30 January 1986.

On the basis that the husband seriously disputed the date of separation pleaded by the wife, I granted the husband leave to file his affidavit and, consequently, also granted leave to the wife to file her affidavit in reply. The proceedings were part-heard on 30 January 1986 and concluded on 31 January  1986.

The More Relevant Aspects of the Law in this Case

1. Section 43

\n
\"The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to-
\n

\n
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
\n

 

\n
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
\n

 

\n
(c) the need to protect the rights of children and to promote their welfare; and
\n

 

\n
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.\"
\n


2. Section 48

\n
\"(1) [GROUND] An application under this Act for a decree of dissolution of a marriage shall be based on the ground that the marriage has broken down irretrievably.\"
\n


3. Section 48

\n
\"(2) Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.\"
\n


4. Section 49

\n
\"(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.\"
\n


5. Section 49

\n
\"(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have *155 continued to reside in the same residence or that either party has rendered some household services to the other.\"
\n


6. The meaning of \"Separation\"

\n
(a) The case of Todd v Todd (No 2) (1976) 25 FLR 260 contains a detailed analysis of the concept of \"separation\" and \"living separately and apart\". Separation means more than physical separation - it involves the destruction (breakdown) of the marital relationship - \"the consortium vitae\" - where one or both of the spouses form the intention to sever or not to resume the matrimonial relationship and act on the intention. What comprises a matrimonial relationship for one couple will vary; marriages involve many elements, some or all of which may be present in a particular marriage.
\n

 

\n
When it is asserted that a separation has taken place it may be necessary to examine and compare the state of the marital relationship before and after the alleged separation; it is a question of fact to be determined in each case.
\n

 

\n
(b) In the case of Pavey v Pavey (1976) 25 FLR 450 the Full Court dealt with an appeal from a decision of a single judge dismissing an application of dissolution where the parties had continued to live under the one roof. It appeared that the parties had slept in separate beds from December 1973 until the date of the application and had sexual intercourse only once, when the husband broke into the wife's bedroom much against her will. The wife did her husband's laundry because if she didn't he \"got nasty\". She cooked for him occasionally and they ate together even less frequently. The wife obtained a maintenance order against the husband early in 1974. The evidence was substantially corroborated by an adult son of the marriage who lived with them for part of the time in question.
\n

 

\n
The Full Court commented favourably on the analysis of the relevant sections by his Honour Mr Justice Watson in Todd v Todd (No 2) (supra) with two qualifications:
\n

 

\n
(i) to conform to the wording of the Act the word \"breakdown\" should be used rather than \"destruction\"; and
\n

 

\n
(ii) to the list of consistent elements of the marital relationship should be added \"the nurture and support of the children of the marriage\".
\n

 

\n
While not laying down an inflexible rule, the court strongly suggested that corroboration of the applicant's evidence of separation under the same roof in these cases should be required. The court also said that these cases often turn on evidence of performance of cooking, washing and housework but as more men turn their hands to these activities, they will become much less significant as indicators of the condition of the marital relationship. Reference was made to the case of Johnson v Johnson [1964] VR 604 wherein Starke J stated:
\n

 

\n
\"the fact that a husband and wife continue to live under the same roof does not prevent the termination of cohabitation when one party has abandoned the other. It must be determined, in such a case, whether in the circumstances, there has been a sufficiently substantial degree of repudiation of the matrimonial obligations to amount to an abandonment.\"
\n

 

\n
(c) In the case of Falk v Falk (1977) 29 FLR 463, the Full Court has said:
\n

 

\n
\"clearly there is no difficulty about accepting a view that parties have *156 'separated' notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied. It is accepted that separation really means a departure from a state of things rather than a particular place.\"
\n

 

\n
In this case reference was also made to a passage in Pavey's case:
\n


\n
\"in such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage is broken down, and common residence suggests a continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the same roof and by showing that there has been a change in their relationship gradual or sudden, constituting a separation.\"
\n

 

\n
(d) What is therefore required by s 48(2) is that there be a real breakdown in the marriage, namely a breakdown of the matrimonial relationship or the consortium vitae, such breakdown to have continued for a period of twelve months. The question then arises as to what is the \"consortium vitae\".
\n

 

\n
(e) \"Consortium Vitae\"
\n

 

\n
In the case of Crabtree v Crabtree (No 2) [1964] ALR 820 per Selby J:
\n

 

\n
\"the question of consortium is ... a different matter from that of physical separation. Consortium has been defined as a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. In involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse - all those elements which, when combined, justify the old common law dictum that a man and his wife are one person. It is not necessary that all these elements should be present to establish the existence of a matrimonial consortium; one or very few may exist and they may show that the matrimonial consortium has not been destroyed; that it is still alive, although in a maimed and attenuated form.\"
\n

 

\n
The question of what elements constitute a consortium vitae of a marital relationship has come before the courts in a number of cases, (including, in addition to those I have already referred to, McDermott v McDermott (1976) FLC 90-034; Quigley v Quigley (1976) 26 FLR 508; Bell v Bell (1979) FLC 90-662) and in those cases, it has been said that the normal elements, the presence of some or all of which would indicate the marriage has not broken down and the absence of any one of which would be some evidence to the contrary are as follows:
\n

 

\n
* sexual intercourse;
\n


\n
* dwelling under the one roof;
\n

 

\n
* giving society and protection to each other;
\n

 

\n
* economical or fiscal unity or co-operation;
\n

 

\n
* public recognition of each other as spouses;
\n

 

\n
* private acceptance of each other as spouses;
\n

 

\n
* communication between the parties during any separations;
\n

 

\n
* the nurture and support of the children of the marriage;*157
\n

 

\n
* the extent of what marital services are still rendered by the parties to each other, etc.
\n

 

\n
Of course, parties can be physically separated, even for extended periods, without the consortium vitae having come to an end where the reasons for the separation are consistent with the continuation of the matrimonial relationship involving physical separations due to, health reasons, business reasons, absences on vacation, etc.
\n


7. A question of fact

\n
Although the absence of any one or more of the factors which usually comprise the consortium vitae may tend to show the consortium vitae no longer exists, none the less determination of whether consortium vitae has ended, that is whether the marriage has broken down, is essentially a question of fact depending upon the circumstances of each individual case.
\n


8. The requirement to establish a starting point

\n
There must be a point of time, a point of separation, twelve months or more before the application for dissolution is filed, when it can be said that the matrimonial relationship came in fact to an end or the consortium vitae was destroyed or had broken down.
\n

 

\n
In Pavey v Pavey (supra), the court said: \"there are marriages where the parties drift apart without discussing the problems that cause this, and, without expressing any intention about the matter, act as if the marital relationship has been severed\". In a case such as that, the time at which the parties can be said to have \"separated\" is often difficult to establish in evidence, but it must be established under s 48.
\n


9. The more difficult question of the relevance (or otherwise) of the parties' state of mind and implementation of intentions

\n
(A) Can the unilateral intention by one spouse (subject to other criteria being satisfied) bring the consortium vitae to an end?
\n

 

\n
(B) Is it necessary for the unilateral intention by one spouse to be communicated to the other spouse?
\n

 

\n
(C) Is it necessary for the party forming a unilateral intention to bring the consortium vitae to an end, to sufficiently put such intention into effect?
\n

 

\n
(D) Is it necessary to establish the separation by \"overt\" evidence?
\n

 

\n
The authorities
\n

 

\n
(i) Tye v Tye (1) (1976) 30 FLR 499 (Note) involved the case where a husband left Australia informing his wife that after he had settled abroad he would send for her to join him. Some two months later she received a letter from him informing her that he would not resume cohabitation. Until she received the letter she firmly believed that there was no breach or impending breach of the matrimonial relationship and that the consortium vitae was still intact. The court found the ground proved. Emery J stated:
\n

 

\n
\"... there can be no doubt that the unilateral intention of one spouse, not communicated to the other spouse can bring the consortium vitae to an end. 'Separation' therefore means not only actual physical separation in such circumstances that the consortium vitae has been brought to an end.\"
\n

 

\n
(ii) Xuereb v Xuereb (1976) FLC 90-029 involved a case where the husband returned to Malta from Australia for a holiday. His wife and children *158 went also. He decided they would live permanently in Malta and made two trips to Australia alone to complete his business here. He alleged the marriage ended on his second departure from Australia when he decided not to resume cohabitation. The wife alleged she knew of no rift in the marriage until eight months later, producing as evidence, her husband's letters to her during the period. There was conflicting evidence, also in the form of letters. His Honour accepted the husband's evidence where it conflicted with the wife's. The court held that the law was clear that the consortium vitae may be broken by the unilateral act of one party who may then file an application for dissolution.
\n

 

\n
(I must confess that, having regard to the principles of s 43 of the Act, it troubles me that on the basis of the principles enunciated in the cases of Tye v Tye and Xuereb v Xuereb (supra) if pressed to their extreme limits, make it feasible, (at least in cases where a physical separation is involved, albeit it that the commencement of the physical separation appears to be for reasons consistent with the continuation of the matrimonial relationship), for a spouse to not only unilaterally form an intention to bring the consortium vitae to an end but also hide such intention, either by a nonfeasance or even misfeasance, from the other spouse; the receipt by the other spouse of an application for dissolution of marriage, some twelve months or more later, could therefore be the first indication to such a spouse that his or her marriage had allegedly irretrievably broken down some twelve months or more beforehand. At the very least, in such an extreme case, the court would need to exercise extreme caution and fully inquire into the facts relied upon by the applicant in support of the contention that the relevant intention had been formed and acted upon on the relevant date.
\n

 

\n
(iii) Lane v Lane (1976) FLC 90-118 involved an application for dissolution of marriage of the parties who had been living in separate homes for ten months preceding the making of the application. The issue was whether the consortium vitae had been destroyed at some two or more months prior to the date while the parties still lived under the same roof. The husband claimed that it had, because he had formed intention to abandon the matrimonial relationship several years before and had therefore progressively accepted fewer household services from his wife and spent less time with her socially and otherwise. The wife denied that it had and presented the usual evidence concerning household services etc. Her Honour dismissed the application. Whilst not doubting that the husband had formed the intention of abandoning the matrimonial relationship longer than twelve months before the application, her Honour found on the facts that the intention had not been sufficiently put into effect.
\n

 

\n
Her Honour said
\n

 

\n
\"... when in fact both parties continue to reside in the same residence ... and one party intends to bring the marriage to an end, that party must carry out that intention overtly, unequivocably and specifically. If it were otherwise this sole ground for dissolution, one year separation, could be grossly abused by one spouse who wants the cake and eat it too - enjoying certain aspects of marital cohabitation, rejecting others as it suits, and then divorcing the other spouse when expedient.\"
\n

\n
*159
\n

 

\n
(iv) In the case cf Fenech v Fenech (1976) 9 ALR 527 there was evidence of a strain in the marital relationship between the parties; they occupied separate bedrooms, there was no sexual relationship between them for a year; the husband was on a sickness benefit which would not support two households; the wife continued to do the shopping, cooking and washing for the husband; and the husband contributed to the housekeeping expenses. The court held that the Family Law Act 1975 (Cth) requires some overt separation, some evidence that there are two households, not one, and this had not been established in that case. The Chief Judge said:
\n

 

\n
\"marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself - between the husband and wife - is there an acknowledgement of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households not one; ...\"
\n

 

\n
(v) See also Todd v Todd referred to on page 155 of this judgment in relation to the formation of an intention and acting on the intention.
\n

 

\n
Having regard to the concepts enunciated in the aforesaid cases, what is required therefore is that an intention (by at least one spouse) to bring the consortium vitae to an end be established and that there has been a sufficient implementation of that intention. (Animus et factum.)
\n

 

\n
An intention formed and not acted upon or implemented within a reasonable time, depending on the circumstances, ceases to have significance unless later repeated or revived. Many marriages at some stage reach a low ebb where at least one of the parties considers that the continuation of the consortium vitae is unthinkable - yet, the following day the situation may have improved, or the mental outlook towards the situation has become more positive and life goes on as before.
\n

 

\n
The communication by one spouse to the other of the intention formed by the spouse to bring the consortium vitae to an end can be one way of implementing the intention.
\n

 

\n
\"Communication\" need, of course, not be verbal.
\n


\n
\"Communication\" is defined in The Shorter Oxford Dictionary as meaning \"the action of communicating ... the imparting, conveying, or exchange of ideas, knowledge, etc (whether by speech, writing or signs).\" The Macquarie Dictionary also refers to \"to impart knowledge; make known; to convey one's feelings, thoughts etc\". The implementation of an intention formed can be \"passive\" in nature; that is a neglect or failure to act or pursue a course of conduct in circumstances where action would be more consistent with a continuing consortium vitae, then lack of action.
\n

 

\n
In cases involving a separation under the same roof, an intention formed by one spouse to bring the consortium vitae to an end and sufficiently implemented, would create a situation which would, in the normal course of events, provide the other spouse with clear signposts of the reality of the state of affairs. Substantial difficulties arise in cases where the intention to bring the consortium vitae to an end is formed (or allegedly formed) at about the time a physical separation between the spouses occurs in circumstances which are equally consistent with a continuing marital relationship, as in Tye v Tye and Xuereb v Xuereb (supra). The same difficulties also arise in cases where the intention to bring the consortium to an end is formed (or allegedly *160 formed) at about the time a physical separation comes about in circumstances beyond the control of the parties; I refer, for example to the cases where one of the parties is admitted to hospital or an institution for indefinite or lengthy periods. (Collins v Collins (1961) 3 FLR 17; Main v Main (1949) 78 CLR 636; Wilson v Wilson (1955) NZLR 175; Henderson v Henderson (1957) NZLR 521.)
\n


10. The main aspects of the evidence in this case (summarised)

\n
(A) Sleeping arrangements
\n

 

\n
(i) In par 9 of the wife's application for dissolution of marriage she pleads that the husband and wife separated under the one roof on or about 30  September 1984 \"when the parties commenced sleeping in separate rooms\". In par 3 of her narrative affidavit sworn 3 December 1985, the wife asserts: \"the husband and I separated under the one roof finally in September 1984 after many years of marital difficulty. It was in September 1984 that the parties commenced sleeping in separate bedrooms. I have continued to sleep either in the television room on the couch or in a single bed in the children's room.\"
\n

 

\n
(ii) The husband in his affidavit sworn 30 January 1986 denies the wife's assertion stating that the parties have continued to sleep in the same bed and in the same room till February or March of 1985.
\n

\n
(iii) Mr Taraboulsi, a brother of the wife who was called as a corroborative witness on behalf of the wife, stated that he was a relatively frequent visitor to the Batty household, including in the mornings, and on the basis of his observation, by Christmas 1984 the parties appeared to have separate sleeping arrangements. The husband denied Mr Taraboulsi's evidence stating that Mr  Taraboulsi would only have visited the household twice between October 1984 and February 1985, and not in the mornings.
\n

 

\n
(iv) Mr Magid (Mike) Batty, a brother of the respondent husband called as a corroborative witness on behalf of the husband, an insurance underwriting manager, in his evidence indicated that he had considerable contact with the parties during October 1984 at the time when the parties commenced to operate their new business venture (a video shop) having, on 1 October 1984 arranged an insurance cover note for the parties and eventually assisting the parties in executing insurance proposals on 30 November 1984. He indicated that he noted nothing amiss between the parties save and except some \"nervousness\" in relation to their new business venture. He stated that in October 1984 he would have attended the parties' household at least once each week.
\n

 

\n
I am not satisfied, on the evidence, that the applicant has established that separate sleeping arrangements commenced at or on about the time pleaded by the wife but, possibly by December 1984 or, more probably, not until early 1985.
\n

 

\n
(B) Sexual intercourse
\n

 

\n
(i) The wife gave oral evidence to the effect that the last act of sexual intercourse took place on 7 August 1984. She said that she noted that date specifically and subsequently undertook a pregnancy test (which proved negative) and then spent ten days in bed due to an *161 ailment; she asserted that her husband ceased occupying the same bed some three weeks thereafter.
\n

 

\n
(ii) According to the husband's oral evidence, the last act of sexual intercourse took place in October 1984. The husband appeared to have equally valid reasons for recalling the event on the basis that by then the parties had commenced their new business venture in the video shop (commenced on 1 October  1984) and that it was his wife's birthday on 10 October 1984.
\n

 

\n
On the basis of the evidence, without corroboration (which obviously would rarely be available in relation to matters involving intimate acts between a husband and a wife) I am left with only being able to find that no sexual intercourse has taken place between the parties since some date in October  1984.
\n

 

\n
In answer to some questions I directed to the husband, it became clear that in the ten months of 1984 (to say, mid-October 1984) the parties had sexual intercourse on three or four occasions and not at any specifically and significantly greater rate in the calendar year of 1983. Thus, for these parties in this particular case, frequency of sexual intercourse cannot be regarded as an aspect which formed a significant part in their relationship in recent years and therefore the date of the last act of sexual intercourse, as far as an indication of the consortium vitae having come to an end, is in this case not a reliable indicator.
\n

 

\n
(C) Household services
\n

 

\n
(i) Curiously, par 4 of the wife's narrative affidavit sworn 3 December 1985 (as distinct from par 3 of that affidavit) lapses into the present tense stating: \"I cook, clean and do the washing for the children but do not perform any household tasks whatsoever for the husband. The husband eats most meals at his mother's place.\" Accordingly these statements assert the situation as at the date of swearing of the wife's affidavit namely 3 December 1985 and therefore do not assist the court in establishing the date from which, the wife might allege, such a situation commenced.
\n

 

\n
(ii) On the other hand, par 5 of the husband's affidavit sworn 30 January 1986, asserts that the wife continued to perform household tasks for the husband prior to March 1985.
\n

 

\n
Matters relating to the rendering of household services were not significantly otherwise canvassed in oral evidence either on behalf of the wife or the husband in evidence in chief or cross-examination. The evidence of the wife's brother and the husband's brother, though scant on this point (either direct or by inference) would tend to support the husband at least to the extent that to the end of 1984 or up to early 1985 life in the Batty household appeared to continue as before, albeit that there were clear signs that the relationship was uncongenial and strained for a variety of reasons (that is the husband had been unemployed for two years, the video shop business venture was proving not to be successful etc) - in the case of Fenech v Fenech (supra) it was held that over and above the evidence that the relationship of the parties was under continual strain, the requirements under the Family Law Act 1975 decreed that some evidence that there are two households, not one, required to be established, that is evidence as to \"overt separation\".*162
\n

\n
On this aspect, I accept the evidence of the husband.
\n

 

\n
(D) Identifying a date of separation - forming intention - communicating intention
\n

 

\n
(i) As I have earlier indicated, the wife in her application for dissolution of marriage asserted that \"the husband and wife separated under the one roof on or about 30 September 1984\". In answer to a question directed by me to the wife, as to what had occurred on or about the end of September 1984, she was unable to justify the date and time in terms of any specific event or occurrence or as representing a significant change of arrangements in the household as from that date; in fact, the wife indicated that in her opinion the marriage had come to an end in August 1984, but having been requested to specify a date or time (by her legal advisers when her documents were being prepared) she had decided to plead the end of September 1984 to be on the safe side.
\n

 

\n
In re-examination by her counsel, the wife stated that it was about the time of the end of September 1984 that she made her decision that the marriage no longer existed (that is not at the time of the last act of intercourse in early August 1984). The wife further stated that the first occasion that she told her husband of her decision was in \"December 1984\".
\n

 

\n
(ii) The husband, for his part, stated that he did not believe the wife (at that time, at least) that she meant what she said; he indicated that husbands and wives often say things in the course of an argument which they do not really mean.
\n

 

\n
Mr Taraboulsi, in his evidence stated that in a conversation with the husband in February 1985, the husband told him that, as far as the marriage was concerned, \"it's all over\", since September or October or even August (1984). The husband denies making such a statement. Even if made, then clearly such a statement in February 1985 would have been made by the husband with the benefit of hindsight in the light of subsequent events and accordingly I do not place significant reliance on that aspect of the evidence.
\n

 

\n
On the evidence, at the best, (and other evidence suggests it may have been later) it was not until some unspecified date during December 1984 that the wife took some overt and specific steps to put into effect her intention (whenever formed) to end the consortium vitae by at least communicating those matters to the husband. In the light of other events as to family life at that time and a little later, it is not altogether surprising that the husband may not have considered the wife's statements seriously.
\n

 

\n
(E) The nurture and support of children of the marriage - economic cooperation
\n

 

\n
Prior to 1 October 1984 the husband had been unemployed for approximately two years. The parties had, from time to time discussed the possibility of purchasing or establishing a business inter alia, a milk bar, take-away food business etc. In par 6 of the wife's affidavit sworn 3 December 1985, she stated:
\n

 

\n
\"In October 1984 shortly after the separation under one roof, the husband and I entered into a business arrangement and opened a video shop. The arrangements themselves had been concluded for a long time *163 prior to the commencement of the business itself and prior to the breakdown of our marriage.\"
\n

 

\n
This aspect of the wife's affidavit evidence, also proved to be unreliable and inaccurate.
\n

 

\n
In reply to questions directed by me to the wife, she admitted that she considered it would have been possible for the parties not to proceed with the new business venture until right before 1 October 1984. When asked why, under the circumstances, she then proceeded with co-operating with her husband to enter into this partnership venture after, according to her evidence, the marriage had broken down, she replied that she did so \"for his (the husband's) sake\" as he had been unemployed. Considering this aspect of the evidence, and the evidence as a whole, I find that the wife, whilst unhappy and full of negative feelings about her marriage, had not finally formed an absolute intention to sever the consortium vitae by the beginning of October 1984. Subsequently, when the business venture proved to be unsuccessful, she may well have considered that all was lost and by December 1984 communicated such sentiments to the husband albeit that, at that time, he was not inclined to believe the wife.
\n

 

\n
It is relevant to note the financial arrangements between the parties after they commenced to operate the video business as from 1 October 1984. It is clear from the evidence that the wife had traditionally fulfilled the role of the person in the marriage that controlled the purse strings. This situation continued unabated after the parties commenced the business. The husband would bring to the applicant, at the end of each day, the day's takings of the business for her to control and use as she saw fit. Upon an appropriate request being made by the husband to the wife, she would provide him with funds for petrol, cigarettes and other personal requirements. If, indeed, the relationship between the parties at that time was purely a partnership business relationship, as the wife would seek to assert, then one could have expected the handling of funds and takings from the business to have been conducted more on a business basis rather than on a family basis.
\n

 

\n
The wife in her affidavit in reply sworn 30 January 1986, sought to explain the financial arrangements by stating that she considered herself to be doing no more than \"drawing wages\" for herself from the business as remuneration for the work that she did. Whatever her subjective point of view may have been, I do not accept that, under the circumstances, the question was one of drawing wages. The husband eventually obtained employment in July 1985 and the wife concedes that even then he gave her his wages consistent with the husband's statement to that effect in his affidavit sworn 30 January 1986.
\n

 

\n
Accordingly I find, as far as economic or fiscal unity or co-operation between the parties is concerned, such co-operation and unity continued well beyond any date in 1984.
\n

 

\n
It is also relevant to note the parties' co-operation in relation to the children of the marriage particularly in the light of both parties being involved in the partnership business. It was common ground, on the evidence, the parties had established a workable system pursuant to which there was a sharing of duties as far as taking the children to school and collecting them from school was concerned and otherwise, the wife assisting at the shop between certain hours but otherwise mainly fulfilling her homemaker role and with her husband mainly involved in running the *164 business. It appears that when the parties first commenced the business, in the very short term, it was financially successful with the parties renting out videos at the rate of $2.00 per video but, apparently, very soon considerable competition arose in the area requiring the parties to reduce their rates first to $1.50 per video and later to $1 per video with the inevitable decline in profitability.
\n

 

\n
(F) Public recognition and/or private acceptance of each other as spouses
\n

 

\n
In par 10 of the wife's affidavit sworn 3 December 1985, the wife asserts:
\n

 

\n
\"the last time the husband and I went out together was in January 1985 when an aunt visited from New Zealand and the family attended a re-union. My family however, knew I was separated from my husband even at this time as myself and the children began to stay over at my mother's place from approximately Christmas 1984.\"
\n


\n
The wife did not indicate whether the occasion of the visit from the aunt was either in early, mid or late January 1985. If, indeed, members of her family knew that she was allegedly separated from her husband at that time then certainly she did not call members of her family to corroborate this aspect. The wife's brother, who was called, indicated that he was away on holidays during January 1985.
\n

 

\n
The husband in his answering affidavit asserts that up to March 1985, and even after March 1985, he and the applicant continued to go out together as husband and wife. He refers to a nephew's birthday party in January 1985; he refers to a Lebanese community function in January 1985 and other social visits. In his oral evidence the husband provided more specific details referring to a 21st birthday party and the attendance, with neighbours, by the husband and the wife at the Swagman Restaurant.
\n

 

\n
There is no evidence to suggest that any socialising by the husband and the wife, together, in early 1984 was for the purpose of keeping up a social front (see McLeod v McLeod (1976) 24 FLR 399).
\n

 

\n
The husband's brother in his evidence indicated that on 17 January 1985, the occasion of the witness's son's birthday, the witness still did not observe any change in the relationship between his brother and the applicant wife in this case. He indicated that it was not until about Easter 1985 that problems in the marriage were a matter that became known in the husband's family and as a result of such knowledge becoming available there were then meetings between various members of the wife's family and the husband's family which led to the parties attending marriage guidance counselling in about April 1985.
\n

 

\n
I therefore accept the husband's affidavit on this aspect in preference to that of the wife although it is clear that by the time the parties attended counselling, the wife was merely going through the motions for the sake of either appearances or for the purpose of placating members of the family; she only attended on one occasion and refused to attend again.
\n

 

\n
Taking the evidence as a whole I find that the wife has failed to establish that she separated and continued to live separately and apart from the husband either on the date pleaded by her or twelve months immediately prior to the filing of her application on 6 December 1985. On the evidence available to me, the wife could expect further difficulties in relation to any new application if she files such a new application prior to the end of March 1986.*165
\n

 

\n
Accordingly the wife's application for dissolution of marriage filed 6  December 1985 will be dismissed.
", "tags": [], "relations": {}, "dateAdded": "2010-03-12T01:23:40Z", "dateModified": "2010-03-12T01:24:07Z" } }, { "key": "WQEXC8PQ", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/WQEXC8PQ", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/WQEXC8PQ", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "WQEXC8PQ", "version": 1, "itemType": "case", "caseName": "Batty, In Marriage of 83 FLR 153 10 Fam LR 688; [1986] FLC 75,084 (91-703); 1986 WL 589268", "creators": [], "abstractNote": "", "court": "", "dateDecided": "", "docketNumber": "", "reporter": "", "reporterVolume": "", "firstPage": "", "history": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T01:22:46Z", "dateModified": "2010-03-12T01:23:34Z" } }, { "key": "5N4WH434", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/5N4WH434", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/5N4WH434", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "5N4WH434", "version": 1, "itemType": "case", "caseName": "Privet v Vovk (2005) 195 FLR 191; [2005] NSWSC 1258; BC200510699", "creators": [], "abstractNote": "\"(a) proceedings between parties to a marriage, or by the parties to a marriage, for a decree of:\n\n(i) dissolution of marriage; or\n\n(ii) nullity of marriage;\n\nor\n\n(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise.\"\n\nSection 39 permitted \"matrimonial causes\" to be instituted in the New South Wales Supreme Court. However s 40(3) went on to provide that the Governor General could make a proclamation fixing a date after which matrimonial causes could not be instituted in a Supreme Court. Such a proclamation had been made. Section 40(4) provided that the Supreme Court was not to hear and determine proceedings under the Family Law Act otherwise than in accordance with a proclamation though did not invalidate any decree made by a Supreme Court.\n\nSection 23B of the Marriage Act 1961 (Cth) set out the grounds on which a marriage was void. Section 23B(1)(d) provided a marriage was void if the consent was not a real consent because a party was mentally incapable of understanding the nature and effect of the marriage ceremony.\n\nHeld, allowing the application: (1) At least after the death of a party to a marriage, there is no inhibition on the Supreme Court having jurisdiction to make a finding that a marriage is invalid.\n\n*192 Smith v Bowden [1940] NZLR 749, considered.\n\n(2) Given the evidence that the deceased had suffered a stroke, was under the guardianship of the Guardianship Tribunal and had fluctuating clarity of thought, it was clear that the deceased did not appreciate that she was getting married.\n\nPortsmouth v Portsmouth (1828) 162 ER 611; Evans v Brenton (falsely called Tredennick) (1887) 8 LR (NSW) D 4; In the Estate of Park [1954] P 112, considered.\n\nCases Cited\n\nThe following cases are cited in the judgment:\n\nEvans v Brenton (falsely called Tredennick) (1887) 8 LR (NSW) D 4.\n\nDunne v Brown (1982) 60 FLR 212.\n\nDowal v Murray (1978) 143 CLR 410.\n\nSmith v Bowden [1940] NZLR 749.\n\nHill v Hill [1959] 1 All ER 281.\n\nPortsmouth v Portsmouth (1828) 162 ER 611.\n\nPark, In the Estate of [1954] P 112.\n\nApplication\n\nNo appearance for the cross-defendant\nB Townsend, for the cross-claimant\n\nCur adv vult\n\n\n8 December 2005\n\nYoung CJ in Eq\n\n1 These proceedings arise out of the purported will of Maria Lendvai who died on 14 October 2003 aged 81. The matter first came before the court constituted by Bryson J in October/November 2003. The dispute at that stage was over who was entitled to arrange for the deceased's funeral. Bryson J, for reasons then given, gave this right to the first defendant who is the son of the deceased.\n\n2 At that stage the plaintiff was claiming that he was the deceased's husband and was also the executor under a will made by the deceased on 22 February 2002. That will described the plaintiff as \"my confidant, lover and future husband\".\n\n3 The plaintiff was notified of the hearing and was served of all appropriate documents and did not appear at the hearing; indeed, on 26 November 2004 his solicitors wrote to the defendants' solicitors indicating that the plaintiff no longer wished to pursue his claim on the deceased's estate and shortly after, those solicitors ceased to act.\n\n4 The proceedings were heard before me on 15 November 2005, Mr Townsend of counsel appearing for the cross-claimants who sought probate of a will made by the deceased on 12 June 1991 and for the plaintiff's claim for probate of the 2002 will to be dismissed. The defendants' cross-claim also sought a declaration that the alleged marriage of the deceased and the plaintiff was invalid, a decree of nullity of marriage and an order to the Registrar of Births, Deaths and Marriages that the registration of the purported marriage be set aside.\n\n5 *193 The first problem that arises is whether the court can make the declaration and order for nullity which is sought.\n\n6 The Family Law Act 1975 (Cth) by s 4 defines \"matrimonial cause\" as meaning:\n\n\"(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of:\n\n(i) dissolution of marriage; or\n\n(ii) nullity of marriage;\n\nor\n\n(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise ....\"\n\n7 Section 39 of that Act permits matrimonial causes to be instituted in this court and subs (5) invests this court with the necessary Federal jurisdiction. However, s 40(3) of the Act provides:\n\n\"The Governor-General may, by Proclamation, fix a date as a date on and after which matrimonial causes, and other proceedings, referred to in sub-section 39(5) may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the proclamation ...\"\n\n8 Section 40(4) provides that this court is not to hear and determine proceedings under the Family Law Act otherwise than in accordance with such a proclamation though that section does not invalidate any decree made by a Supreme Court.\n\n9 On 27 May 1976 the Governor-General made a proclamation that certain classes of proceedings may not be instituted in or transferred to, inter alia, the Supreme Court of NSW. Such proceedings included:\n\n\"Proceedings of a kind referred to in paragraph (a) of the definition of \"matrimonial cause' ...;\n\nProceedings of a kind referred to in paragraph (b) of that definition ...\"\n\n10 There was a further proclamation made on 23 November 1983 which purports to be wider in its prohibitions but it is unnecessary to consider it.\n\n11 The instant proceedings are not a matrimonial cause within para (a) of the definition because the proceedings are not between the parties of a marriage. Paragraph (b) of the definition is not limited to proceedings between the parties of a marriage. However, the Family Court, apart from special jurisdiction under s 105 of the Family Law Act or the proceedings designated as third party proceedings, ordinarily has no jurisdiction to deal with a case once one party to the marriage has died.\n\n12 In Dowal v Murray (1978) 143 CLR 410 at 434, Aickin J, in a dissenting judgment, said that although para (b) of the definition does not expressly say that the proceedings shall be between the parties of a marriage, of their very nature such proceedings must be between the parties of a marriage. However, this dictum has not been followed and, for instance, in Dunne v Brown (1982) 60 FLR 212, a daughter of a deceased man sought a declaration as to the validity of that man's marriage to the defendant after his death. McCall J on the facts made a declaration that the marriage was indeed valid. No comment appears from the judgment as to whether the application by the daughter was made by a person with standing or whether the court in the instant case, the Family Court of Western Australia, had jurisdiction to make such an order after the death of the man.\n\n13 *194 Professor Dickey in his Family Law (3rd ed, LBC Information Services, 1997) p 108 says that the Supreme Court of a State may have all the jurisdiction exercised by the Family Court by virtue of the cross-vesting legislation. Whilst this is in general the case, I wonder whether, in the light of the Proclamation and s 40(4), the statement is completely correct.\n\n14 In my view, even if Aickin J's dictum is not completely correct, at least after the death of a party to a marriage, there is no inhibition on this court having jurisdiction to make a finding that a marriage is invalid.\n\n15 The New Zealand case of Smith v Bowden [1940] NZLR 749 is instructive. That was a case where the plaintiff was the widow of the deceased and obtained an order for income during her widowhood. She later went through a form of marriage with one Hitches. Hitches was already married so his second marriage was bigamous and void. The widow obtained an order that a gift of income continued because her so-called second marriage was void. It seems to me that underlying the Smith v Bowden case is the view espoused by Professor Dickey that a void marriage is void and a court declaring it to be so merely states what the position is, it does not alter the fact that the marriage was void ab initio.\n\n16 Accordingly I am satisfied that I have jurisdiction to deal with this case. As the deceased's purported husband is a party it may be that the court should make an order as to the status of the marriage, but it is quite possible to deal with almost all the matters that arise for decision in this case without going so far.\n\n17 It should also be noted before I get on to the facts of the case that in Australia, the distinction between a void and voidable marriage has disappeared. Traditionally a voidable marriage could only be attacked during the lifetime of the parties whereas a void marriage was always void. Now s 23B of the Marriage Act 1961 (Cth) sets out the only grounds on which a marriage is void. Section 23B(1)(d) notes one event as being \"the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; ... (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony\".\n\n18 There is some evidence that the marriage, if it be a marriage, was conducted in breach of s 42 of the Act. However, s 48(2) provides that a marriage is not invalid by reason of non-compliance with s 42 so that whilst I will note the problems as I outline the facts, I must focus on whether there has been a real consent.\n\n19 The marriage allegedly took place when the deceased was an in-patient on 13 June 2003. The marriage certificate in evidence shows that the celebrant was one Quang Van Truong and that the witnesses were C Farkas and Ellen Wilson.\n\n20 The deceased had suffered a stroke in April 2003 after which she became dependent on others. She was first a patient in Sutherland Hospital and then a patient in the Ferndale Nursing Home at Mortdale until her death. There is evidence from some friends who visited her that she would say fantastic things such as that her husband had another family in Darwin. On 30 June 2003, the Guardianship Tribunal made orders placing the deceased under the guardianship of the Public Guardian and committing her estate to the Protective Commissioner. The Tribunal came to the view that the deceased was not capable of making informed decisions about her accommodation, care and treatment.\n\n21 The Tribunal had before it evidence from some people who have given *195 evidence in the present case. Dr Cordato has given evidence that the deceased in June 2003 had fluctuating clarity of thought, at times she behaved appropriately but at other times she responded inappropriately and that analysis showed that she should be placed in the severe cognitive impairment range. Occupational therapist Karen Wiseman came to the view that the deceased had impaired orientation as to time and date or where she was and asked whether her mother was coming to visit (her mother was deceased). She also had non-reality orientated conversations such as stating that she was cremated on the day Ms Wiseman examined her. There was also a report by a lady who could not be found, a speech therapist, who reported in June 2003 that the deceased demonstrated difficulties with comprehension. She reported that the deceased's yes/no responses were not always reliable and tangential or unrelated verbal responses were elicited during the tests. She reported that the deceased had difficulties understanding complex verbal commands or instructions and had a short attention span.\n\n22 The most significant piece of evidence was given by Ms Naunton, an authorised marriage celebrant.\n\n23 Ms Naunton said that the plaintiff contacted her by telephone in early May 2003 saying that he wanted to marry an elderly lady with whom he had had a long time association. The plaintiff attended Ms Naunton's office on 9 May 2003 with a Cecilia Farkas. Ms Farkas said that she was a long time friend of the deceased and it would be her dearest wish to get married. The plaintiff took away the prescribed form which Ms Naunton asked to have completed. On 11 May 2003 the plaintiff brought back the form with a the signature \"M Lendvai\" on it.\n\n24 On 9 June 2003 Ms Naunton very wisely attended the Sutherland Hospital at about 2 pm on her own. She said to the deceased: \"I'm Judith Naunton your marriage celebrant\" to which the deceased replied: \"Are you the police. Somebody has stolen my pension card, bank book and passport.\" Ms Naunton said: \"No, no Felix has them.\" The deceased said: \"Felix who.\" Ms Naunton said: \"Your marriage is on Thursday\" and the deceased replied: \"Will you get me the police?\"\n\n25 Ms Naunton was alarmed and she spoke to one of the nurses and told the nurse that the deceased was being married on Thursday. The nurse reacted with astonishment.\n\n26 Ms Naunton formed the opinion that the deceased did not have capacity to marry. She told this to the plaintiff and said: \"Having met her I cannot proceed with the wedding.\" The plaintiff remonstrated with Ms Naunton for visiting the deceased without him being present and said: \"Oh you've got her on a bad day. Come down with me tonight with Cecilia and she will say it's alright.\" Ms Naunton said: \"No, nothing will be achieved by that. Come around and get your refund.\"\n\n27 Ms Naunton said she was not contacted by any other celebrant seeking a transfer of the notice of intention to marry.\n\n28 Thus Ms Naunton had her interview with the deceased on the Monday and Quang Van Truong celebrated her marriage to the plaintiff on the following Friday.\n\n29 As I have said, the plaintiff did not appear at the hearing nor did he call evidence. However, the material before the Guardianship Tribunal was digested by the Tribunal and is in evidence before me. Although I need to be very careful *196 with this material because it was not necessarily accepted by the Guardianship Tribunal and is not in accordance with the evidence presented by the cross-claimants, I should set it out for completeness. The Tribunal reported that the plaintiff told it that the deceased had asked him to marry her. He had responded that they would marry after his 60th birthday. He was upset that Judith Naunton had gone to the hospital in his absence. He also agreed he had not informed the doctors or the hospital staff of the marriage because of the deceased's interest in privacy. The two witnesses to the marriage, Cecilia Farkas and Ellen Wilson said that the deceased appeared to be quite excited during the ceremony and had not needed to be prompted in her responses. Members of the Tribunal spoke to the deceased in her hospital bed and were told by the deceased that her husband and friend could look after her. However, they noted that the content of her responses was frequently tangential but she did make a number of references to her friend and husband and it was clear she was referring to the plaintiff.\n\n30 There must be considerable doubt about whether there was any real compliance with s 42 of the Marriage Act at all. The Act makes it perfectly clear that people must attend before an authorised celebrant a certain period before the marriage and must make declarations and that apart from a transfer, that celebrant is the one who celebrates the marriage. There is great suspicion that the form handed to Ms Naunton was not signed by the deceased. Indeed, there is great suspicion that the 2002 will was also not signed by the deceased. In any event, a completely different celebrant who has never given evidence, even to the Guardianship Tribunal, purported to conduct a ceremony when none of the prescribed declarations had been put before him as far as one can tell. However, because of s 48 of the Marriage Act (when read with s 23B(1)(c)) non-compliance with s 42 does not appear to make a marriage void. The only significance of that material is that it goes to whether there was a void marriage because of lack of consent.\n\n31 Mr Townsend referred me to the decision of Sir John Nichol in the leading case of Portsmouth v Portsmouth (1828) 162 ER 611. The headnote shows that the court was considering a marriage de facto solemnized under circumstances of clandestinity between a person of weak and deranged mind and the daughter of his trustee and solicitor. The Court of Arches found the marriage void. That judgment and the other judgments cited to me, Evans v Brenton (falsely called Tredennick) (1887) 8 LR (NSW) D 4 and In the Estate of Park [1954] P 112, show that it is necessary to show that the person contracting the marriage must be mentally capable of appreciating that it involves the responsibilities normally attached to a marriage. See also Hill v Hill [1959] 1 All ER 281.\n\n32 In my view the evidence which I have related, particularly the evidence of Ms Naunton, shows that the deceased did not appreciate that she was getting married. This view is reinforced by the fact that the plaintiff has not pressed his claim at the trial, nor has he produced witnesses such as Cecilia Farkas, Ellen Wilson or the celebrant, who might be able to throw light on the matter in his favour. There is also great doubt in my mind of the validity of the will made in the plaintiff's favour in 2002 which again was witnessed by friends of the plaintiff and on which no evidence has been called to support it, notwithstanding the order of Bryson J in 2003 that the plaintiff needed to prove it in solemn form.\n\n33 In my view the cross-claimants are entitled to orders that probate of the will *197 of Maria Lendvai dated 2 June 1991 be granted to John Mellor, one of the two executors named therein with leave to Michael John Smith the other executor to come in and prove. Order that the matter be referred to the Registrar in Probate to complete the grant. Order that the Registrar of Births, Death and Marriages correct the Register kept under the Births, Deaths and Marriages Registration Act 1995 (NSW) by cancelling the entry relating to the purported marriage between the plaintiff Felix Privet and the late Maria Lendvai on 13 June 2003. Order that the plaintiff pay the costs of the proceedings.", "court": "", "dateDecided": "", "docketNumber": "", "reporter": "", "reporterVolume": "", "firstPage": "", "history": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T01:18:08Z", "dateModified": "2010-03-12T01:19:51Z" } }, { "key": "8T9SCP9M", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/8T9SCP9M", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/8T9SCP9M", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/EK2GPQFT", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "8T9SCP9M", "version": 1, "parentItem": "EK2GPQFT", "itemType": "note", "note": "
Section 119 of the Family Law Act 1975 (Cth) enabled either party to a marriage to bring proceedings in contract or in tort against the other party. Section 120 of that Act abolished the right of action for damages for adultery.
\n

 

\n
By DNA testing a man confirmed that he was not the biological father of either the second or the third child born during his former marriage. He brought proceedings for the tort of deceit against his former wife for false representations contained in birth notification forms completed by her to the effect that he was the father of the children. He claimed damages for personal injury in the form of anxiety and depression and for financial loss, including loss of earning capacity and money spent on the children under the mistaken belief that he was their father.
\n

 

\n
Held, that neither s 119 nor s 120 of the Family Law Act expressly or impliedly prohibited an action in deceit between spouses, but in the circumstances the former wife was not liable in deceit.
\n

 

\n
Per Gleeson CJ. While the tort of deceit is not excluded from marital relations, such relations normally present an unsuitable environment in which to construct legal rights and obligations.
\n

 

\n
Per Gummow, Kirby and Crennan JJ. Private matters of adult sexual conduct and a false representation of paternity during a marriage are not amenable to assessment by the established rules and elements of deceit.
\n

 

\n
Per Hayne J. Save in exceptional circumstances, representations made by one party to a marriage to another about the relationship between them, including but not limited to questions of paternity of children and sexual fidelity, are not to be treated as giving rise to an action for deceit.
\n

 

\n
Per Heydon J. One element of the tort of deceit, reliance on the alleged fraudulent representations, was not made out by the plaintiff on the facts.
", "tags": [], "relations": {}, "dateAdded": "2010-03-12T01:15:54Z", "dateModified": "2010-03-12T01:16:43Z" } }, { "key": "EK2GPQFT", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/EK2GPQFT", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/EK2GPQFT", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "EK2GPQFT", "version": 1, "itemType": "case", "caseName": "Magill v Magill (2006) 226 CLR 551; (2006) 231 ALR 277; (2006) 81 ALJR 254; (2006) 36 Fam LR 1; (2007) Aust Torts Reports 81-782; [2006] HCA 51; BC200608953", "creators": [], "abstractNote": "", "court": "", "dateDecided": "", "docketNumber": "", "reporter": "", "reporterVolume": "", "firstPage": "", "history": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T01:08:01Z", "dateModified": "2010-03-12T01:08:08Z" } }, { "key": "D2JIVGB9", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/D2JIVGB9", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/D2JIVGB9", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "D2JIVGB9", "version": 1, "itemType": "case", "caseName": "H v C [2003] FMCAfam 329", "creators": [], "abstractNote": "Family law — Divorce — Recission of decree nisi — Miscarriage of justice resulting from perjury \n\n\nApplication to rescind decree nisi on basis of miscarriage of justice resulting from perjury.\n\nJoint application for divorce.\n\nApplicant and respondent married in China and migrated to Australia.\n\nRespondent husband proposed to divorce applicant wife and marry another foreign national so new wife could get permanent residency.\n\nApplicant agreed to proposal following harassment and offer of money from respondent.\n\nApplicant and respondent continued marital relationship after application for divorce.\n\nWhether miscarriage of justice by reason of perjury.\n\nWhether applicant coerced by respondent.\n\nWhether application able to be refused on public policy grounds.\n\nHeld: Application granted.\n\nApplicant and respondent presented perjured evidence in divorce application in that they continued marital relationship after making application.\n\nNo evidence of coercion.\n\nDivorce application too flawed to proceed on public policy grounds.", "court": "", "dateDecided": "", "docketNumber": "", "reporter": "", "reporterVolume": "", "firstPage": "", "history": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T01:00:35Z", "dateModified": "2010-03-12T01:01:16Z" } }, { "key": "97X4TIFS", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/97X4TIFS", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/97X4TIFS", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/DEB5GHA2", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "97X4TIFS", "version": 1, "parentItem": "DEB5GHA2", "itemType": "note", "note": "

ground \"\" that the marriage has broken down irretrievably.

", "tags": [], "relations": {}, "dateAdded": "2010-03-12T00:40:07Z", "dateModified": "2010-03-12T00:40:12Z" } }, { "key": "DEB5GHA2", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/DEB5GHA2", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/DEB5GHA2", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "DEB5GHA2", "version": 1, "itemType": "webpage", "title": "FAMILY LAW ACT 1975 - SECT 48 Divorce", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/fla1975114/s48.html?query=divorce%20and%20grounds", "accessDate": "2010-03-12T00:39:55Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T00:39:55Z", "dateModified": "2010-03-12T00:39:55Z" } }, { "key": "BZ7ITZVR", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/BZ7ITZVR", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/BZ7ITZVR", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "BZ7ITZVR", "version": 1, "itemType": "webpage", "title": "The Fate of \"No-Fault\" in America - [2003] VUWLRev 12; (2003) 34 VUWLR 213", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/VUWLRev/2003/12.html?query=no%20fault%20and%20divorce", "accessDate": "2010-03-12T00:27:07Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T00:27:07Z", "dateModified": "2010-03-12T00:27:07Z" } }, { "key": "S5AJ74B3", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/S5AJ74B3", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/S5AJ74B3", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/NEV9PVCR", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "S5AJ74B3", "version": 1, "parentItem": "NEV9PVCR", "itemType": "note", "note": "

USA: No-fault divorce \"\" allows the couple to define what they consider to be a (un)satisfactory marriage

", "tags": [], "relations": {}, "dateAdded": "2010-03-12T00:05:41Z", "dateModified": "2010-03-12T00:06:04Z" } }, { "key": "NEV9PVCR", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/NEV9PVCR", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/NEV9PVCR", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "NEV9PVCR", "version": 1, "itemType": "webpage", "title": "Who Gets a Better Deal? Women and Prenuptial Agreements in Australia and the USA - [2003] UWSLRev 6; (2003) 7 University of Western Sydney Law Review 109", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UWSLRev/2003/6.html?query=%22no%20fault%20divorce%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%22", "accessDate": "2010-03-12T00:05:38Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-12T00:05:38Z", "dateModified": "2010-03-12T00:05:38Z" } }, { "key": "ITIVJUC5", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/ITIVJUC5", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/ITIVJUC5", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/ZXTXZAIW", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "ITIVJUC5", "version": 1, "parentItem": "ZXTXZAIW", "itemType": "note", "note": "

increase in divorce after no fault cause passed:

\n

there was considerable debate in the community about the most appropriate period of separation to establish irretrievable breakdown.

\n

Although the Committee’s report did not recommend a reconsideration of \"\" no-fault divorce \"\", there was some disquiet at the impact of the FLA, fanned by the sudden increase in divorce applications following its passag

", "tags": [], "relations": {}, "dateAdded": "2010-03-11T23:59:15Z", "dateModified": "2010-03-12T00:01:11Z" } }, { "key": "ZXTXZAIW", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/ZXTXZAIW", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/ZXTXZAIW", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "ZXTXZAIW", "version": 1, "itemType": "webpage", "title": "To Have but not to Hold by Henry Finlay - [2006] MULR 19; 30(2) Melbourne University Law Review 594", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MULR/2006/19.html?query=%22no%20fault%20divorce%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%22", "accessDate": "2010-03-11T23:59:05Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-11T23:59:05Z", "dateModified": "2010-03-11T23:59:05Z" } }, { "key": "469IJIGQ", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/469IJIGQ", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/469IJIGQ", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/QNH7W6MA", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "469IJIGQ", "version": 1, "parentItem": "QNH7W6MA", "itemType": "note", "note": "

divorce law BEFORE family act 1975: the grounds for a decree of divorce a mensa et thoro were, generally
speaking, confined to adultery and cruelty.

", "tags": [], "relations": {}, "dateAdded": "2010-03-11T23:46:11Z", "dateModified": "2010-03-11T23:46:31Z" } }, { "key": "QNH7W6MA", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/QNH7W6MA", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/QNH7W6MA", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "creatorSummary": "HONOURABLE KEP ENDERBY", "numChildren": 2 }, "data": { "key": "QNH7W6MA", "version": 1, "itemType": "document", "title": "", "creators": [ { "creatorType": "author", "firstName": "", "lastName": "HONOURABLE KEP ENDERBY" } ], "abstractNote": "", "type": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "", "accessDate": "", "archive": "", "archiveLocation": "", "shortTitle": "", "language": "", "libraryCatalog": "", "callNumber": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-11T23:44:38Z", "dateModified": "2010-03-11T23:45:26Z" } }, { "key": "SQRMDB7G", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/SQRMDB7G", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/SQRMDB7G", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/QNH7W6MA", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } } }, "data": { "key": "SQRMDB7G", "version": 1, "parentItem": "QNH7W6MA", "itemType": "attachment", "linkMode": "linked_url", "title": "3.pdf (application/pdf Object)", "accessDate": "2010-03-11T23:44:45Z", "url": "http://www.austlii.edu.au/au/journals/UNSWLawJl/1975/3.pdf", "note": "", "contentType": "application/pdf", "charset": "windows-1252", "tags": [], "relations": {}, "dateAdded": "2010-03-11T23:44:45Z", "dateModified": "2010-03-11T23:44:45Z" } }, { "key": "DVG5KH8C", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/DVG5KH8C", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/DVG5KH8C", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/7PXS93DU", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "DVG5KH8C", "version": 1, "parentItem": "7PXS93DU", "itemType": "note", "note": "

With the \"\" Family Law Act 1975 \"\" (Cth) came the no-fault concept of \"\" divorce \"\". Whether a spouse has committed adultery, or who left the marriage are no longer relevant to how the law applies - neither party is to blame.

\n

There is now only a single ground for \"\" divorce \"\" - ‘irretrievable breakdown’ of the marriage. The court is no longer concerned about the reasons behind the breakdown of the marriage - but the marriage must have broken down to the extent that there is no possibility of reconciling.

\n

To prove that there has been an irretrievable breakdown, a couple must have lived separately and apart for no less than 12 months before applying for a \"\" divorce \"\".

\n

When the court has decided that an Application for \"\" Divorce \"\" is successful, it grants a Decree Nisi. This is an interim order that means that the couple is divorced, but neither party may remarry until the Decree becomes absolute/final, one month and one day later. This one month period presumably gives the parties a chance to change their minds at the last minute.

", "tags": [], "relations": {}, "dateAdded": "2010-03-11T23:39:22Z", "dateModified": "2010-03-11T23:39:55Z" } }, { "key": "7PXS93DU", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/7PXS93DU", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/7PXS93DU", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "7PXS93DU", "version": 1, "itemType": "webpage", "title": "Divorce - [] HotTopic", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/liac/hot_topic/hottopic/2004/1/4.html?query=best%20interests%20of%20the%20child%20and%20family%20law%20and%20divorce", "accessDate": "2010-03-11T23:39:14Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-11T23:39:14Z", "dateModified": "2010-03-11T23:39:14Z" } }, { "key": "C2E65HPJ", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/C2E65HPJ", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/C2E65HPJ", "type": "text/html" }, "up": { "href": "https://api.zotero.org/groups/13608/items/HMGT3HQX", "type": "application/json" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "C2E65HPJ", "version": 1, "parentItem": "HMGT3HQX", "itemType": "note", "note": "

marriage statistics up to 2007

", "tags": [], "relations": {}, "dateAdded": "2010-03-11T23:28:03Z", "dateModified": "2010-03-11T23:30:06Z" } }, { "key": "39XJX6FU", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/39XJX6FU", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/39XJX6FU", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 0 }, "data": { "key": "39XJX6FU", "version": 1, "itemType": "webpage", "title": "3307.0.55.001 - Divorces, Australia, 2007", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.abs.gov.au/ausstats/abs@.nsf/mf/3307.0.55.001", "accessDate": "2010-03-11T23:29:50Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-11T23:29:50Z", "dateModified": "2010-03-11T23:29:50Z" } }, { "key": "HMGT3HQX", "version": 1, "library": { "type": "group", "id": 13608, "name": "family law", "links": { "alternate": { "href": "https://www.zotero.org/groups/family_law", "type": "text/html" } } }, "links": { "self": { "href": "https://api.zotero.org/groups/13608/items/HMGT3HQX", "type": "application/json" }, "alternate": { "href": "https://www.zotero.org/groups/family_law/items/HMGT3HQX", "type": "text/html" } }, "meta": { "createdByUser": { "id": 164837, "username": "amandadip", "name": "", "links": { "alternate": { "href": "https://www.zotero.org/amandadip", "type": "text/html" } } }, "numChildren": 1 }, "data": { "key": "HMGT3HQX", "version": 1, "itemType": "webpage", "title": "3306.0.55.001 - Marriages, Australia, 2007", "creators": [], "abstractNote": "", "websiteTitle": "", "websiteType": "", "date": "", "publisher": "", "place": "", "DOI": "", "citationKey": "", "url": "http://www.abs.gov.au/ausstats/abs@.nsf/PrimaryMainFeatures/3306.0.55.001?OpenDocument", "accessDate": "2010-03-11T23:27:47Z", "shortTitle": "", "language": "", "rights": "", "extra": "", "tags": [], "collections": [], "relations": {}, "dateAdded": "2010-03-11T23:27:47Z", "dateModified": "2010-03-11T23:27:47Z" } } ]