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The presumption of marriage in Australia-Revivine?


It is provided by s113 of the Family Law Act 1975 that, in proceedings for a declaration as to the validity of marriage, divorce or annulment, the court," ... may make such declaration as is justified." The recent decision of the Full Court of the Family Court of Australia in Lockhart and Lockhart (1) involved a defended application for a declaration of the validity of marriage under that provision which had been enlivened by an assertion by the husband, in response to a claim for property settlement and spousal maintenance filed by the wife, that the parties were never actually married.

It appeared that the parties (2) had begun a relationship in the early 1990s, although, as the trial judge was at pains to point out, (3) there was dispute about some of the details. The wife claimed that they then participated in a marriage ceremony in a registry office (4) in Ghana in 1997, though again, there was some doubt as to the exact details, apparently because wedding anniversaries were not of cultural significance in Ghana, which was the wife's country of origin. However, the respondent admitted that he and the applicant referred to one another as husband and wife and they were socially regarded as a married couple. The wife had changed her name on her passport to that of her husband, although the husband claimed that that course was mainly an expedient deception arising from issues of convenience rather than as a result of their formal relationship. The wife further claimed that the husband held a valid marriage certificate, but the husband submitted that the document was a forgery which, even though it did purport to provide evidence of the wedding, had either been lost or stolen. (5) At first instance, Carmody J dismissed the husband's application in a judgment which touched upon many issues which are central to an appreciation of marriage law in Australia. The Full Court (6) allowed the husband's appeal.

The husband's grounds for the appeal were, first, that the trial judge had erred in law in holding that a marriage had been established by cohabitation and repute. Second, that the trial judge had erred in concluding that the husband had failed to rebut the presumption and had failed to provide reasons for so deciding.

First, the Full Court noted (7) that no issue had been raised by either party in relation to the findings of credit made by the trial judge, nor, indeed, had there been any submission that Carmody J had misstated the law as to the presumption of marriage. The Full Court then proceeded to discuss various prior authorities which had been considered in the judgment at first instance. (8) These cases, and others related to them, will be further analysed as a necessary part of the analysis of the judgment at the first instance. (9) In particular, attention was paid to Re Taylor (Deceased), Taylor v Taylor (10) which, in the view of the Full Court, (11) provided support for the proposition that," ... where parties had lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married."

The Full Court also commented that the trial judge appeared to have placed especial reliance on the Taylor case, which, even if it did represent the law in Australia, on the facts of Lockhart the trial judge had been unable to find that there had been a ceremony of marriage and, more particularly, (12) that," ... although the parties lived together in a relationship for a number of years there was no evidence from any person other than them that they had represented to the world that they were a married couple." The Full Court then sought to distinguish Taylor on the basis that, in the earlier case, there had been considerably more evidence, which had been accepted, that the parties had lived together, in addition to the production of various certificates.

Further, the Full Court had been referred to the unreported decision of the New South Wales Court of Appeal in Solomon v Hatti. In that case, the issue of reputation had been raised by McHugh JA when, first, he stated that, in the past, proof that parties had cohabited, and acquired a reputation, as husband and wife had been enough to raise a presumption of marriage even though no evidence of a marriage ceremony had been provided. Having made that initial statement, McHugh JA made the rather more policy orientated that the large number of de facto relationships in the community had not weakened the presumption which arose from a man and a woman living together and acquiring a reputation as husband and wife. "Social stigma," he continued, "no longer attaches to those who 'live together'. At all events, it does not attach to the same degree that once it did." In view of that consideration, McHugh JA expressed the presumption's operation in these terms: "[W]hen a man and a woman profess to be husband and wife and acquire a reputation as husband and wife, a strong presumption arises that they are husband and wife." However, rather contradictorily, he then stated that, "Indeed, there is less reason at the present time for perrons to conceal their true relationships than in the past." With respect to the Full Court, their ultimate adjudication, and to the detailed judgment of Carmody J, it is suggested that McHugh JA's comments do not really take the issue very much, if at all, further.

That, indeed, might very well be why the Full Court did seek, in any real way, to apply Solomon v Hatti to Lockhart and immediately stated (13) that, in the later case, there had been very little evidence about reputation. In the view of the Full Court, it was necessary to have enough evidence to enliven the presumption, particularly, where there was either not evidence of a marriage or there were findings of the kind which the trial judge had made in Lockhart. In addition, as in Lockhart, (14) a real question arose as to whether the presumption should be applied, especially if it had the effect of reversing the onus of proof.

The Full Court emphasised that, in Lockhart, there was no evidence from any person other than the parties really at all--there was, of course, the documentary evidence but that, they found, was more supportive of their existence of a de facto relationship and which could, if necessary, provide the evidence in rebuttal. Thus, the Full Court went on, in the absence of a finding that a marriage ceremony took place, even a ceremony of questionable validity, the evidence in relation to cohabitation and repute would need to be substantial to allow such a presumption to operate. The evidence in Lockhart did not fall into that category. Hence, in conclusion, the Full Court stated,15 that the," ... application of the presumption must be consonant with the evidence in the case, not sit, as it does here in an evidentiary vacuum." Accordingly, the appeal was allowed and, in addition, the Full Court decided that, as the appeal had succeeded on the application of principle, there was no utility in remitting the matter.

To this commentator, at least, the Full Court's decision contains a number of disquieting features, especially when the judgment of Carmody J at first instance is analysed and taken into proper and objective account. The first is that although the Full Court regarded the matter as having been decided on matters of principle, there was little discussion, as will be seen, when compared with the detailed judgment of Carmody J at first instance, of those very matters of principle. In reaching that conclusion, the Full Court reiterated the comments of Dixon CJ and Menzies and Fullager JJ in Jacombe v Jacombe (16) where it had been said that the presumption was rebuttable only be clear and cogent evidence and," ... without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage..."

That quotation, when taken with the Full Court's earlier comment on an evidentiary background, more than a little seems to beg the question which the existence of the presumption seeks to resolve. As Thayer put (17) the matter, "Presumptions are aids to reasoning which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded in general experience or probability of any kind; or merely on policy or convenience. On whatever basis they rest, they operate in advance of argument or evidence, or irrespective of it, by taking for granted; by assuming its existence." Put another way, had the evidentiary vacuum noted by the Full Court not existed, the need for the presumption would, for that very reason, have been obviated.

At the same time too, Carmody J's judgment at first instance placed the factual situation with which he was required to deal in, as will be seen, in the general context of developments elsewhere, not merely in the past, but in the global present. An especially disappointing aspect of the Full Court's decision is its failure, as will generally become apparent, to take appropriate account of recent developments elsewhere. It may, in the end, be possible to encapsulate the Full Court's reversal of what I consider to be Carmody J's important contextual analysis by saying either that the presumption needs evidence to activate it (even though it seems to have been devised to operate so as to assist where that evidence was not available) or that, despite various dicta, which are considered in the judgment at the first instance, it can be rebutted by the absence of such evidence, despite the presumption's apparent purpose...!

What is, though, necessary is a detailed commentary on the contextual analysis of Carmody J at first instance, before the present state of the law as it related to the presumption of marriage in Australia can properly be assessed. In addition, many of the comments made by him are of global significance. It is the purpose of this article to comment on the evidentiary presumption of marriage and its operation in that context.


The first point made generally by Carmody (18) was that the power to alter property rights--the order sought by the wife--applied only (19) to parties who were married. This provided an instance of the manner in which the law seeks to differentiate between," ... married spouses and those who maintain other forms of intimate liaisons." The judge then went on by noting that the historical and social context of marriage had been discussed by the Full Court of the Family Court of Australia in In re Kevin (Validity of Marriage of Transsexual) (No 2), (20) although he commented that, for family law purposes, marriage was more simply regarded as the," ... union of a man and a woman to the exclusion of all others voluntarily entered into for life." (21)

Carmody J then pointed out that the legal preconditions for a valid marriage were set out in ss 41, 44 and 45 of the Marriage Act 1961. These involved, in the judge's ipsissima verba," ... participation in some form of official wedding ceremony performed by an authorised celebrant involving a consensual and mutual exchange of vows or commitments of lifetime fidelity and conjugal support in front of witnesses [being] essential for a valid marriage." (22) The only legitimate means of bringing such a marriage to an end was by decree of dissolution.

At the same time, though, for purposes of Part VIII of the Family Law Act, which deals with matters of finance and property, the term "marriage" also includes any arrangement commenced by a purported marriage ceremony in Australia, either valid or void, (23) or by an arrangement in the nature of a marriage recognised in Australia under the rules of private international law. (24)

The effect of these provisions had been considered by Nygh J of the Family Court of Australia in Lengyel v Rasad (No 2), (25) where proceedings had been initially commenced in the Supreme Court of New South Wales, (26) in respect of an application under State legislation, (27) but which had been transferred to the Family Court of Australia on the grounds that the parties had been through a marriage ceremony in Indonesia. (28) Such evidence as was available was a document, which was not a contemporaneous record, which purported to be a statement signed in Jakarta by three persons and certified by a Notary Public. That document recited the fact that the principal parties had gone through a marriage ceremony according to Islamic rites. However, the marriage had not been registered with the Indonesian authorities, which precluded its validity under Indonesian law.

Nygh J took the view (29) that a marriage existed between the parties, even though it was void, for the purposes of Part VIII of the Family Law Act. As regards the document itself, Nygh J found (30) that it amounted to a "record of marriage," as referred to in s 102(a) of the Family Law Act. That was so because, in his own words, it constituted a "historical recitation of an event." It followed that the Family Court had jurisdiction to determine the proceedings, even though the marriage was void. (31)

In Lockhart, Carmody J went on (32) to distinguish between the effects of legal marriage and other types of relationships and pointed out that de facto marriage was popularly used to define a non-nuptial or civil partnership between a man and a woman cohabiting on a genuine domestic basis, and might include same sex partners. (33) The judge also noted that, in the State of Queensland where he was based, it appeared that some 9.7% of all couples lived in such relationships and that the numbers appeared to be growing.

Carmody J then continued by saying that, "Marriages and de facto relationships have much in common and can be difficult to tell apart. Often they will both be deeply committed and enduring, involve a shared or even co-owned residence, sexual relations and a degree of permanence as well as financial interdependence. Although such partners may describe themselves as 'husband and wife' and sometimes assume each other's name, they both know that they are not actually 'married' in the legal sense if only because there has been no marriage ceremony."

The central issue of the ceremony has been taken up by Wade who, in a most significant article (34) raised the question of what might constitute a sufficient ceremony. "Presumably," he suggests, "the minimum requirements would be an element of publicity, at the time or soon after the ceremony, some statement that it was a marriage ceremony, and some degree of solemnity." At the same time, though, Wade properly notes that many apparent ceremonies are less solemn and elaborate. "What," he asks, "if the parties exchanged vows and solemn promises by the light of the full moon as was their family custom? What if a cohabiting couple held a party for their closest friends as a method to publicly announcing their partnership?" Would those performances be sufficient to attract the provisions of the Family Law Act? It is submitted that they would not do so as too many lacunae exist which would result in Nygh J's description not being (35) activated. In Wade's hypothetical situations there was no mention of witnesses or authorised celebrant. (36) That would certainly be the situation at the time of the Full Court's decision in Lockhart, even given the relatively rudimentary formalities needed to satisfy the current requirements of the Marriage Act 1961. (37)

That, though, is not the end of the matter, for, as I have sought to point out elsewhere, (38) an especial problem which may attach to unformalised relationships is the determination of when they begin and, more particularly, when they end. That issue may have important consequences in, say, property matters, as the existence of a relationship may well depend, inter alia, on the length of time it has subsisted. (39) Hence, specific dates may be of considerable importance in determining financial and proprietary obligations in de facto relationships; whereas, in de jure relationships that will not be productive of any serious difficulty because the relevant dates will be readily discernible. Hence, findings as to whether a marriage exists may be of central importance for parties.

In that general context, Carmody J in Lockhart noted (40) that, where both parties were still living and there was little or no reliable evidence of a ceremony, then the testimony of the party asserting the existence of the marriage might be proved by the fact of cohabitation, rather than by evidence of a disputed marriage ceremony, as its validity would be proved by the presumption. That view is not especially new and may be found in the seminal decision of the High Court of Australia in Jacombe v Jacombe. (41) In Lockhart, Carmody J continued by saying that the," ... responsibility of the judge is to consider all evidence and draw on any inference which is fairly open on the proven facts and apply such aids including presumptions and rational inferences that may assist in arriving at the decision." That was the process which had, earlier, been adopted by Connor J of the Family Court of Western Australia in deciding In the Marriage of Latimer. (42)

All of that is well established legal principle, though cases on the area in Australia have been sufficiently rare for it to be usefully rehearsed and it is also important for the purpose of the instant discussion. Yet it is equally clear from the detailed facts in Lockhart, set out by Carmody J, (43) that drawing appropriate inferences from available information may not be an easy task of itself, particularly where the veracity or bona fides of either or both of the parties can be open to question. (44) Thus, although there appeared to be a document which did provide evidence of a wedding, that document was regarded by the respondent as being a forgery and, in any event, was either lost or missing. The applicant had no copy although she had sworn that she had tried unsuccessfully to obtain a replacement.

Nonetheless, the judge was of the view (45) that, were the document a forgery, the applicant was still permitted by the respondent to use it to represent to others--including persons in authority--that she was his wife. It followed that, wherever the truth might lie, the respondent ought not to be permitted to take advantage of his own dishonesty. "Anyone," Carmody J stated, "seeking to be relieved against his own act or disbelieved on his own statements should fail on policy grounds alone. He simply cannot be heard to say that a certificate exists but is a fraudulent imitation."

Although behaviour of the particular kind which seems to have occurred in Lockhart is rare (as are the general circumstances), dishonesty in family law matters is not. So that, for example, in Gascoigne v Gascoigne,46 decided, it may be possibly thought in less mendacious times, Lush J, in dealing with a husband who had attempted to set up his own fraudulent design to rebut a presumption that a conveyance was a gift for his wife stated (47) that the trial judge had permitted," ... the plaintiff to rebut the presumption which the law raises by setting up his own illegality and fraud, and to obtain relief in equity because he has succeeded in proving it. The plaintiff cannot do this: and whether the point was taken or not in the County court; this court cannot allow a judgment to stand which had given relief under such circumstances as that."

More recently, that very issue was taken up, at a relatively early stage in the development of modern Australian family law jurisprudence, by Goldstein J of the Family Court of Australia in In the Marriage of Elias. (48) In that case, which involved an application for an alteration in property interests under s 79 of the Family Law Act 1975 by the wife, the husband had claimed to the Commissioner of Taxation that a particular business belonged both to the wife and to him, but had claimed both to the wife and to the Court that it was entirely his. In saying (49) that the husband could not be heard to make such an assertion, Goldstein J referred (50) to the remarks of Lord Denning MR in Tinker v Tinker, (51) where reference had been made to Gascoigne, (52) who had said that it was," ... quite clear that the husband could not have it both ways. So he is on the horns of a dilemma. He cannot say that the home is his own and, at one and the same time, say it is his wife's. As against his wife, he wants to say that it belongs to him, As against his creditors, that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely: or it was conveyed to her as trustee for her husband. It must be one or the other." Indeed, in Elias, Goldstein J emphasized (53) that he was directed by s 79(2) of the Family Law Act 1975 not to make an order altering interests in property unless he was satisfied that the order was, in all the circumstances, just and equitable.

The importance of what might be described as the Elias principle had, more recently, been affirmed by Chisholm J in Jordan and Jordan. (54) There, the judge had sought to refine the principle in the following terms: "There is a rule of family law that when people make misrepresentations of fact to third parties and gain advantage from so doing, they cannot in subsequent proceedings under s79 of the Family Law Act lead evidence which contradicts those representations." In formulating that principle, Chisholm J continued by saying that it was much wider than the equitable doctrine of estoppel, although on other hand, it might be seen as deriving from more general doctrines that a person should not profit from her or his own wrong, or that a person must come to equity with clean hands. He further commented that the principle which he proposed might be of wide application, even though the examples which he used were drawn from the area of property distribution. Ultimately, though, Chisholm J went on to express55 the view that the principles," ... should not be regarded as doing more than entitling the court to reject the evidence." In consequence, he then reformulated (56) the principle in rather narrower terms, than those which he had originally posited. So that he stated that, "When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s79 of the Family Law Act to decline to accept from that party evidence which contradicts those representation."

In Lockhart, Carmody J stated (57) that the enunciation in the Jordan case could (58) (though not must) have the effect of precluding a party to litigation from claiming that in court the contrary of representations made out of court to government agencies. Two brief general comments should be made: first, given the subject matter of all the cases surrounding the Jordan principle, that might be perceived as being unjustifiable. Given the rather strange circumstances of Lockhart, any direction towards a method of disentangling the evidence as it applied to the several issues therein involved might be properly regarded as desirable. Second, as regards the reference to government agencies made by Carmody J in Lockhart, Chisholm J in Jordan had referred (59) to false representations made in respect of relevant laws when, presumably, the relevant agency might take action. However, in Lockhart, the relevant agency had not sought, in any way, to involve itself.

Carmody J then went on (60) to note that the production of a marriage certificate or other official document was," ... perhaps the best and most common but certainly not the only acceptable way of proving a disputer marriage." This, again, is well established: in Rakauskas v Rakauskas, (61) Barry J had said that, "The existence of a marriage may be established by the testimony of a petitioner of the celebration of a marriage ceremony where there was confirmatory evidence that the parties lived together and were accepted in society as a married couple." (62) All that appeared to be required was the best available evidence. (63) Further, oral evidence might be given without the production of further supporting documentary proof. Hence, in Shelduko v Shelduko, (64) Crockett J commented that, in a period of cohabitation of almost nineteen years.
   ... with a reputation of being married persons, existing for such a
   period, in such circumstances, in many different communities, with
   the respondent's constant assertion of his being a married man, it
   would require in my view, the strongest evidence of the greatest
   cogency on the part of the respondent to rebut the presumption of a
   valid marriage which, in my view, in law exists. (65)

The most important aspect of Carmody J's judgment, at this juncture at any rate, was his comment, made in the light of Rakauskas and Shelduko, both of which emanated from Eastern Europe at an especially unstable period of its history, as to the need for dispensation with formal proof. "[T]he law," he stated, "understands that it may sometimes by difficult to produce primary documentary evidence especially in those countries where record keeping is lax or, at least, not as dependable or comprehensive as it is here." It may very well, though, be that Carmody J's comments are not as accurate in respect of Australia as the ideal, which he seems to posit. Even in relatively recent times, in a country where suburbs are built on fire gullies and substantial towns on flood plains, (66) records may all too easily, certainly in pre-computer days, be lost or destroyed. At the same time, of course, in the light of the Jordan decision, (67) assertion must not be too uncritically accepted.

Indeed, such proved to the position in Lockhart: the judge noted (68) that the only available witness to the alleged ceremony was the applicant herself. The absence of any supporting documentation had not been adequately explained except, possibly, by distance or be inadequate preparation. More especially, Carmody J went on to state that he was "singularly unimpressed" by the overall performance of the client in the witness box and was not willing to accept her word that the marriage existed.

Because her evidence was so unsafe and so unsatisfactory the judge took the view that there was simply not sufficient other evidence of a forensic nature to decide whether a ceremony constituting a marriage ever took place in Ghana. Hence, in Carmody J's own words, all that he had available to him was," ... that there was some sort of (disputed) public event. There was no description of any of the formalities that were observed nor any indication of whether an exchange of vows was even involved. [Nor] from the evidence what sort of a ritual is capable of producing a valid marriage according to the law of Ghana or, indeed, whether any ceremony or other formality was required at all." Further, the judge commented that he had not been informed as to whether there was a celebrant or not and it also seemed as though there were not wedding photographs nor cards from well-wishers attached. (69)

However, to add a further complexity, Carmody J did not believe the denial made by the respondent either. Again, in his ipsissima verba, (70) "To put it bluntly, I do not trust either of the parties enough to prefer the credibility of one party over the other on credibility grounds. I am therefore left in the invidious position of being unable to reach a conclusion either way as to whether the parties were formally joined together as man and wife in a marriage ceremony..." At the same time, the judge clearly recognised that the existence of the marriage itself was not the essence of the dispute--which was money. In that context, both parties had equally strong, though completely different, motives to lie. (71)

Furthermore, even were the applicant's belief that she was married to the respondent genuine, it was no stronger than the respondent's contrary belief. That situation, as Carmody J pointed out, only added to the complexity of the situation at large as, "The weight to be given to conflicting subjective views when trying to ascertain the true nature of a disputed relationship is problematic at best." The applicant had, though, attempted to rely on various correspondence as being objective indicia of the existence of a marriage. The common characteristics of that correspondence was that it contained reference both by the respondent and by third parties to the parties' married status.

Once again, the judge was skeptical (72) about the utility of these items of evidence. "Although," he said,
   voluntary statements against the pecuniary interests of a party are
   often regarded by the law as evidence of the truth of their
   contents the evidence here even at its highest is deucedly
   ambiguous and no more corroborative of marriage than a de facto
   relationship. This is because both parties admit to having made
   false or misleading representations about their marital status in
   the past and whenever it suited their own interests.


Thus, the probative force of these statements, even when reinforced by the fact of cohabitation, (73) was insufficient to support a finding of marriage. Accordingly, Carmody J was not reasonably satisfied that the parties were ever married in conformity with the rules of private international law. That, in effect, meant that the presumption of marriage as it existed in its forms arising out of formal and essential validity (74) was not applicable to the present case. In addition, there was the decision of Watson J in In the Marriage of Kirby and Watson, (75) which involved the latter aspect of presumption, where the judge said (76) that,
   the presumption of the validity of marriage can be taken too far.
   Once there is a challenge to validity the court being put on notice
   should apply ordinary rules of common sense to the inferences being
   drawn from what facts are known. Where status us involved it may
   avail little to invent artificial rules as to presumptions and onus
   of proof. (77)

Even with Kirby and Watson, that could not, as Carmody J pointed out, (78) be the end of the story (if that is an appropriate description), despite the absence of documentary proof, credibility and the inadequate nature of surrounding circumstantial evidence. Nonetheless, an applicant, he thought, might properly place reliance on the presumption arising out of habit and repute (79) or, as it is more usually described in Australia, cohabitation. A notion, according to significant Australian authority, (80) which is," ... equally applicable to marriages celebrated abroad."

Having so disposed of the presumption as it arose from formal and from essential validity of marriage, Carmody J then turned his attention to that last manifestation. That course was entirely proper: essential validity did not arise at all in Lockhart, and, even without Watson J's dictum in Kirby and Watson, any application of the motion of formal validity to the facts of Lockhart might well be straining its application even past that to be found in Re Shepherd; George v Thyer. (81) In that case, Kekewich J had found the existence of "something like a ceremony" (82) and "something like a certificate" (83) and had described the whole proceeding, in terms not wholly inapposite to the present discussion, as, ".a somewhat romantic story," about which he had a great deal of doubt, (84) but still declined to invalidate the marriage. (85)

As regards the presumption arising from cohabitation, (86) Carmody J commented, (87) that it." ... arises on proof that a couple cohabited as man and wife and enjoyed the social reputation of being married." The judge continued by saying that that manifestation differed from the presumption arising out of formal or essential validity because, ". rather than assuming validity on the strength of an antecedent marriage celebration it presumes both the existence and validity of such a ceremony despite the absence of any clear evidence to one ever having taken place." That view had been similarly expressed in the High Court of Australia by Dixon CJ who had said, in Jacombe v Jacombe, (88) that," ... proof that the parties lived together as man and wife raises a presumption that they were validly marries. which is rebuttable only by clear and cogent evidence and . is another element to be taken into account in considering whether or not the circumstances as a whole suffice to prove the marriage."

The emphasis which Dixon CJ seemed to be seeking to impart was that the cohabitation did not of itself give rise to a presumption of its own, but was merely a concomitant of the totality proving that a marriage existed. That view, though, does not seem congruent either with earlier or more recent authority.

As regards that former, in the seminal case of Sastry Velaider Arogenvy v Sembecutty Vaigalie, (89) the Judicial Committee of the Privy Council had enunciated the presumption in another, slightly different, way which emphasised the effect of cohabitation. In delivering the Court's judgment, Sir Barnes Peacock stated that," ... where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary by clearly proved, that they are living together in consequence of a valid marriage and not in a state of concubine." Much more recently, in Pazpena de Vire v Pazpena de Vire, (90) Michael Jackson QC, sitting as a Deputy Judge of the High Court, had said that, "Ordinarily, proof of the marriage certificate is sufficient to satisfy the court . but it has long been the position in English law that the absence of a certificate is not fatal to proceedings. Even where there is no evidence of the marriage ceremony or, indeed, no evidence of formal registration, the law does not presume against the existence of a valid marriage."

In Lockhart, Carmody J sought to explain (91) the reason for the presumption as it arose from cohabitation and the distinction between it and the presumption's other manifestations. "Cohabitation and reputation," he stated, "amount to sufficient prima facie proof of a lawful marriage notwithstanding the paucity of other evidence that the parties underwent any kind of formal ritual." It now, consequently, seems clear that the presumption does not merely represent some kind of general proof of existence of a particular marriage. The judge continued by pointing out that that the," ... proposition was originally devised to facilitate proof of marriage in days before efficient systems of registering public documents when habit and reputation were more important that official records." Further, it also acted as a protection against gossip or innuendo and relieved against potential hardships faced be deserted wives or widows and their children in estate or social security disputes.

Carmody J further emphasized (92) the distinction between the presumption as it arose from cohabitation and reputation and as it arose in relation to formal and essential validity by referring to Halsbury, where it was stated (93) that, "The difference between the presumption of marriage without ceremony and the presumption of marriage following a ceremony is that of cohabitation and cohabitation is required for the former but not the latter." This importance difference can be justified on the ground that when no ceremony can be proven, it makes sense to insist on something more than just cohabitation as husband and wife. Hence, as Carmody J then noted (94) that most cases in which the presumption had been applied involved either cohabitation of considerable length or the birth of children.

Carmody J then continued by dismissing the earlier law on the presumption, particularly if arose out of cohabitation. (95) It is not proposed to rehearse that commentary as it has been attempted elsewhere. (96) Having examined those cases, the judge then commented (97) that,
   Ironically, a presumption which calls for compelling evidence to
   refute a presumed legal fact may have the unintended consequence of
   validating a marriage where none may ever have, in fact, taken
   place. It may also have the effect of regularising obviously
   defective marriages in the interests of justice and equity.

As an example, Carmody J pointed to the much more recent decision of the English Court of Appeal in Chief Adjudication Officer v Bath (98) In that case, the respondent had gone through a Sikh marriage in a Sikh Temple, when she was aged sixteen, with one B. They lived together as a married couple, having two children, until B died in 1994. During his life, he had paid income tax and social security contributions on the basis that he was a married man. After his death, the respondent applied for a widow's pension. (99) That initial application was refused on the grounds that she was not a widow because there was not evidence of a valid ceremony of marriage. (100)

On appeal to the Social Security Appeal Tribunal, the appellant argued that the ceremony had not taken place in a registered building and had not been registered in a registry office, so that it had not been established, nor could it be presumed, that there was a valid marriage and, hence, the respondent could not be described as B'S widow. The Commissioner, though, allowed the subsequent appeal, taking the view that the marriage had been validated by the commonlaw presumption of marriage ensuing from long cohabitation (101) which, in turn, arose from the law's policy that marriage entered into in good faith should, wherever possible, be upheld. On further appeal, it was submitted by the Chief Adjudication Officer that the presumption of marriage arising out of cohabitation had been rebutted by the finding by the Tribunal that the temple where the marriage had been celebrated was not, in 1956, registered for the performance of such ceremonies. The Court of Appeal dismissed the appeal and held that the parties had been validly married in 1956.

First, Evans LJ noted (102) that the relevant statutory provision (103) rendered a marriage void if the parties had knowingly and wilfully failed to comply with it. (104) In the instant case, there was no suggestion that either party had been aware of any defect. (105)

Second, Evans LJ sought to examine (106) the presumption of marriage as it applied to the facts of Bath. After a consideration of earlier authority, (107) he concluded (108) that such authority showed that,
   ... where a man and women [sic] have cohabited as man and wife for
   a significant period there is a strong presumption that they have
   agreed to do so in proper form." In some jurisdictions, (109) it
   might be sufficient that the agreement is implied. Where there is,
   as in England (or Australia) a legal requirement that the marriage
   settlement take a particular form, then the presumption operates to
   show that the proper form was observed, and it may only be
   displaced by positive (not merely by clear) evidence, In that
   respect, Evans LJ pointed out that, "How positive and how clear,
   must depend among other things upon the strength of the evidence
   which gives rise to the presumption--primarily, the length of
   cohabitation and evidence that the parties regarded themselves and
   were treated by others as man and wife.

There was, however, more recent authority in the shape of R (G) 2/70, (110) a decision of Sir Rawden Temple. (111) In that case, there had been some kind of a marriage ceremony involving a formal exchange of voluntary consents in the presence of witnesses before a person whom the female party believed to be a registrar. At the same time, although she bona fide believed that the proceeding was a valid ceremony of marriage, she was uncertain as to where exactly it had taken place, though she positively stated that it had not taken place in the local register office. On the other hand, it was not shown that the requirements for a common law marriage in England had been satisfied, as no episcopally ordained priest appeared to have been present. (112) On those facts, the commissioner had had said in R (G) 2/70 that," ... on the evidence as what took place ... the 'marriage' was not celebrated in an authorised mode in a stipulated place by a proper official, and that it was void ipso jure." Accordingly, the female claimant was not married. However, it seemed that the parties had cohabited as spouses for some 21 years, until the male party's death, and had had two children. As regards that aspect of the case, Sir Rawden Temple had said that where there is doubtful or inconclusive evidence of a ceremony of marriage having been performed, possibly imperfectly, and cohabitation thereafter, the validity of the marriage would be presumed in the absence of evidence to the contrary. Yet, were he correct in his view of the ceremony, there was, "... no room for the application of any such principle and presumption to save the invalid ceremony."

In Bath, Evans LJ agreed (113) with the last comment, but went on to remark that it was not the end of the matter. It had been assumed on the part of the appellant that, if the place of worship where the ceremony had taken place was not registered in accordance with the Act, then the marriage was invalid, or, at least did not count as a marriage for the purposes of social security legislation. "This," Evans LJ continued, (114) "leads to the remarkable conclusion, that apart from the injustice of which the respondent complains, that a marriage ceremony may be presumed where there is no evidence from the surviving widow, as where she refuses to cooperate by providing information, but it may not be presumed when, as here, she gives a truthful account, which leads to that there was a failure to comply with the requirements of the Act, of which she was completely unaware." In addition and likewise, when, as was the case here, the respondent accepts the truth of the Departmental allegations against her, she was in a worse position than if she has required positive proof of non-registration, which the Department had not provided. In addition, the paradoxical consequence emerged that a marriage could be presumed from long cohabitation where there was no ceremony, but, where a bona fide ceremony had failed to comply with the formalities, perhaps for some trivial reason, no similar presumption arose. However, the appellant's submission was fallacious.

Furthermore, there was, Evans LJ considered, (115) a more general principle, as earlier enunciated by Omrod J in Collett v Collett (116) that, "The general tendency of the law as it has been developed had been to preserve marriages where the ceremonial aspects are in order." More particularly, Ormrod J had commented (117) that the principle which had emerged from legislation and case law was," ... that if a ceremony of marriage had actually taken place which, as a ceremony, would be sufficient to constitute a valid marriage, the courts will hold the marriage valid unless constrained to express statutory enactment to hold otherwise." Accordingly, Evans LJ was of the view, (118) in which Schieman and Robert Walker LJJ concurred, that the parties were validly married.

In Lockhart, (119) Carmody J emphasised the matter of policy, which Evans LJ had raised through his discussion of the Collett (120) decision. That had also been taken up by Robert Walker LJ who stated (121) that, here there is an irregular ceremony which is followed by long cohabitation, it would be contrary to the general principle of the law to refuse to extend to the parties the benefit of a presumption which would apply to them if there were no evidence of any ceremony at all." (122)

Of course, it is well known that reliance on policy as a guide to judicial decision making is a fraught process, and not least, as I have sought to point out elsewhere, (123) in the area of marriage law. However, one instance will presently suffice. In Egerton v Earl Brownlow, (124) Parke B had remarked that he regarded public policy as being, "... a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in difference senses; it may, and does, in ordinary sense mean, 'political expedience' or that which is best for the common good of the community; and in that sense there may be a variety of opinion, according to education, habits talents, and dispositions of each person which is to decide whether an act is to be against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion." Given the case law, which will now be discussed, that statement may presently stand on its own.

In relation to Lockhart at first instance, the decision of Michael Harrison QC, sitting as a Deputy Judge of the High Court in Pazpena de Vire c Pazpena de Vire125 has already been noted. In some respects, that case had some features more in common with Lockhart than had Bath. In Pazpena de Vire, the petitioner, who had been born in Germany and the respondent, who was born in Argentina, had begun a relationship in 1963. The following year, when the petitioner was heavily pregnant, the parties both attended at an office of notaries in Zurich to grant the parties an authority authorising a nominee to celebrate a proxy marriage in Uruguay on their behalf. Shortly after the birth of the couple's child in July 1964, the respondent brought back a marriage certificate from Uruguay, which purported to show that a civil marriage had been contracted on July 9th 1964. Thereafter, the couple cohabited as husband and wife. On the child's birth certificate, the petitioner was described as the respondent's wife and later, in 1967, she had been issued with an Argentine passport, which had only been obtained on the basis that she was the wife of the respondent.

In 1968, the parties moved to England, and, in 1999, after 35 years of cohabitation, the respondent left the petitioner. The petitioner then sought a divorce, which was resisted by the respondent on the grounds that there had never been a valid marriage. The respondent claimed that he had forged the marriage certificate and that no marriage ceremony had ever actually taken place. Almost inevitably, there was no record of the marriage in Uruguay and the experts were agreed that there were serious defects in the certificate. The petitioner relied on the presumption of marriage and argued that the respondent was estopped asserting either that the marriage had not taken place, or that the marriage certificate was forged. It was held that the petitioner had established a valid marriage and, hence, was entitled to a decree of divorce nisi.

The first point made by the acting judge (126) was that Pazpena de Vire was a case where there was no direct evidence of a marriage ceremony having taken place. "Even where," he continued, "there is not direct evidence of the marriage ceremony or, indeed, no evidence of formal registration, the law does not presume against the existence of a valid marriage. Nevertheless where parties to a marriage are alive and well, it is a highly unusual circumstance to find that neither can speak directly to the facts of a marriage ceremony. Yet that is the position here."

After having noted the usual authorities, concluding with Bath, Michael Harrison QC concluded (127) that there was no doubt from the cases that there was a,
   ... strong presumption in favour of a valid marriage where parties
   have long cohabited as man and wife. However, there appears to be a
   divergence in the cases as to the degree of proof required to rebut
   the presumption according as to whether the presumption goes to the
   question of actual ceremony rather than formalities.

On the first issue, the acting judge considered the decision of the Court of Appeal in Re Taylor Decd; Taylor v Taylor and Anor. (128) There, the plaintiff, who had been born in 1911, claimed to be the legitimate son of JT, who had died intestate in 1955. The determination of that question depended upon whether it was proved that JT was lawfully married to Izander, the plaintiff's gypsy mother, at the time of his birth. There was no marriage certificate and no evidence of a marriage ceremony. At the same time, though, six witnesses gave evidence that the plaintiff's parents had lived together as man and wife from 1908 until Izander's death in 1913. The plaintiff was the youngest of four children born during that time, each of whose birth certificated had recorded their mother as being Izander Taylor. Both in her death certificate and certificate of burial, she was recorded as having been the wife of JT. When JT remarried, he was described in the marriage certificate as a widower. There was also evidence of oral declarations, which had been made by him that he had married Izander. At first instance, the plaintiff's claim was upheld and that decision was affirmed in the Court of Appeal.

On appeal, Lord Evershed MR placed considerable reliance (129) on a dictum of Kewewich J in Re Shepherd; George v Thyer. (130) As earlier noted, (131) evidence of a distinctly ephemeral kind was regarded as acceptable and, in any event, the marriage seemed to have been saved by a long period of cohabitation. However, Kekewich J had also said (132) that," ... where a man or woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they are living together in consequence of a valid marriage ..." Lord Evershed M.R. regarded (133) that dictum as representing the law which ought to be applied in cases such as Taylor and the Master of the Rolls was especially emphatic regarding the adverb clearly which had been used by Kekewich J. (134) Likewise, Harman LJ had commented, (135) and Donovan LJ had agreed, (136) that evidence in rebuttal must be "firm and clear." In Pazpena de Vire, the acting judge regarded (137) Taylor as being authority for the proposition that," ... where a presumption arises from the cohabitation and reputation in favour of the parties having been married, the presumption may be rebutted, but only by firm evidence clearly showing that they did not marry at all." This, in Pazpena de Vire, it is apparent that the presumption, at least in cases of the kind involved in both the case itself, and in Lockhart, has not been in any way diminished; a view which is instantly demonstrated by reliance on Taylor, and prior to that, Shepherd.

As regards the second instance of the presumption as referred to in Pazpena de Vire, (138) Harrison QC regarded the decision in Mahadervan v Mahadervan (139) as being strong authority. It was also valuable, he pointed out, as," ... an indication of how the presumption applies to foreign marriages."

In Mahedervan, the parties had married in 1951 in Ceylon, as the country was then known. A local statute (140) required compliance with particular formalities: that the marriage should be solemnised by a registrar in his office, station or other authorised place and that, in the course of the ceremony, the registrar should address the couple as to the nature of the union. The certificate of marriage purported to show that the registrar had solemnised the marriage at his office. The parties cohabited as husband and wife until early in 1952, when the husband left for England. For some two years after that, he wrote letters to his wife in which he had acknowledged her as such.

In 1958, the husband went through a marriage ceremony with an English woman with whom, thereafter, he lived as husband and wife. In 1960, the first purported wife came to England and issued a complaint on the grounds of the husband's adultery. At the hearing before justices, the wife's evidence, which was preferred to that of the husband, was to the effect that the marriage had taken place at her parents' house--no mention being made of the registrar's office. The justices rejected the husband's contention that the marriage was invalid for failure to comply with the local formalities and made an order in favour of the wife. The husband appealed unsuccessfully to the Divisional Court.

As regards the issue of solemnisation on particular premises, the Divisional Court were of the view (141) that the matter was decided by local law (lex loci contractus), which provided (142) that once a marriage had been registered, no evidence could be given that formalities at the place of the marriage had not been complied with. However, that prohibition did not extend to the registrar's failure to address the parties. (143)

In Mahadervan, the Divisional Court referred (144) to Piers v Piers (145) and, more especially, the earlier case of Morris v Davies, (146) noted therein. In Morris v Davies, Lord Lyndhurst had said that, "The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive." In Mahadervan, Sir Jocelyn Simon P interpreted (147) Piers and Morris v Davies as meaning that," ... where a ceremony of marriage is proved followed by cohabitation as husband and wife, a presumption is raised which cannot be rebutted by evidence which merely goes to show on a balance of probabilities that there was no valid marriage: it must be evidence which satisfied beyond reasonable doubt that there was no valid marriage." As regards the presumption's operation in respect to a foreign marriage, the President emphatically stated (148) that "exactly the same weight of presumption" was applicable, as, to do otherwise would be to accept a degree of legal chauvinism which had no place in any rational system of private international law.

In Pazpena de Vire, the acting judge accepted (149) Mahadervan as authority for the view that," ... where a marriage had been followed by cohabitation and reputation, the presumption that the marriage was performed and contracted in conformity with the requirements of local law may only be rebutted upon evidence proving the contrary beyond reasonable doubt. Put another way, every possibility that the marriage did not comply with local formalities must be excluded." The acting judge's view of Bath was that its formulation of the principle was not," ... put so forcefully ." and, the more so, as Mahadervan was not therein cited. Nevertheless, Harrison QC said (150) that, from Bath, it seemed as though the appropriate test was that, ". evidence sufficient to rebut a presumption as to compliance with formalities must be 'clear' and 'positive' or 'compelling'." Taking all of the authority together, he was of the view that, plainly," ... a long-standing marriage will not lightly be struck down on account of some want of compliance with formalities of local law relied on some years later." The public policy, (151) he said, behind that approach was obvious.

As regards the marriage certificate itself and the surrounding evidence, the acting judge noted (152) that there were no entries in the appropriate registers in Montevideo to substantiate that a marriage celebrated in terms of the marriage certificate took place. Similarly, there was no record to confirm a proxy marriage. At the same time though, expert evidence for the petitioner stated that those matters did not, of themselves, mean that the marriage did not take place: an error might have existed in the body of the text, which prevented the registration from being found. It was, therefore, not possible to assume from that that the marriage had not taken place. Further, there was no contrary evidence to gainsay that view.

On the issue of forgery, Harrison QC was not, on the forensic evidence alone, prepared to accept that it had occurred. In addition, he suggested that the forgery, were it such, was of a kind that its use would have been pointless.

The final issue which arose in Pazpena de Vire was whether the respondent was estopped from asserting that he was not married to the petitioner or from asserting forgery of the marriage certificate, because reliance on the latter involved his reliance on his own wrong. Although this article is essentially concerned with the presumption of marriage, the acting judge's reasons for holding that, even were that presumption to be rebutted, the petitioner could not rely on estoppel to uphold the marriage are of some incidental interest. "On the facts of the present case," he stated, (153) :the respondent's first line of defence to the petition is that there is no marriage at all. This is the most fundamental challenge to the concept of a lawful marriage." This was equally as strong as earlier case law where parties were said to be of the same sex (154) or where the marriage was allegedly bigamous. (155) Harrison QC could not see how any of the dicta from cases involving those issues could provide the foundation fro a principle that a state of no-marriage could effectively be transformed into a state of lawful marriage.

In particular, Harrison QC referred to the judgment of Lord Merriman P, in Bullock v Bullock, (156) who might probably have then been the strongest judicial advocate of the utility of estoppel in the present context, but took the view that even he would not have gone so far as to assert such a position. However, Lord Merriman P in his judgment in Bullock had not referred to cases involving the presumption of marriage specifically. In Pazpena de Vire, the acting judge stated (157) that it was," ... obvious that in some of the presumption of marriage cases, judges have sensed that, by operation of law, a marriage is presumed to as a fact in circumstances where none might ever have taken place. But this is the result of applying a presumption, soundly based in public policy, which calls for compelling evidence before the fact established by the presumption is displaced." Although the threshold for successfully rebutting the presumption has been set at a very high level, but none of the authorities established that a party might be prevented from seeking to surmount that threshold. (158)

The acting judge was not, thus, persuaded that the respondent should be estopped from asserting that no marriage had taken place and, for the same reasons, from relying on his own wrongdoing. In that context, he continued, (159) he refused to contemplate the possibility of the respondent's having behaved so despicably towards his wife and children for some 35 years and then, not being precluded from evading his responsibilities (160) by reliance on his own wrongdoing.

By way of conclusion, Harrison QC pointed out (161) that Chief Adjudication Officer v Bath (162) acted as a reminder of practical problems which arose as a presumption based on a long period of cohabitation. Thus, at some imprecise moment in time, parties who were not lawfully married for want of proper formalities become parties who are presumed to be lawfully married. "There is," he said, "much of the flavor of estoppel here."

Hence, Pazpena de Vire raises many of the issues, which were raised in Lockhart, and comes up with the same result. Yet one matter which is clear from Pazpena de Vire and the high level of scholarly analysis displayed by Michael Harrison QC is that considerable reliance was placed on older cases, but, although reference was made to policy, it is perhaps a little unfortunate that the reasons for that policy's initial development were not as clearly articulated as they had been in the Australian cases. (163) Policy should never seem to exist in vacuo.

One recent English case to which Carmody J did not refer in Lockhart, and one which might have assisted his argument, was the decision of Hughes J of the Family Division of the High Court in AM v A-M (Divorce: Jurisdiction: Validity of Marriage), (164) where additional issues were raised. In A-M, the parties had lived as husband and wife for some twenty years and has had two children. Although they spent considerable periods in England, the husband was domiciled in Iraq throughout the cohabitation whilst the wife was domiciled either in Saudi Arabia or Lebanon until 1922, when she acquired a domicile of choice in England.

The couple had gone through two ceremonies of marriage, the first being in London and an Islamic ceremony. Both parties, at the time, were aware that the husband was already married and, hence, that the marriage was polygamous, as permitted by Islamic law. Two years after, a second ceremony took place, when, as a consequence of legal advice, the husband had sought to regularise the status of his wife under English law.

The husband had been advised that, in order to gain recognition in England of his marriage to the wife, he should obtain an Islamic divorce, followed by a marriage, valid by local law in a country where polygamy was recognised. He, thus, obtained an Islamic divorce in Sharjah, in an Islamic country where polygamy was recognised. The remarriage, which took place three days later, was, in essence, in the form of a revocation of the divorce. Some years later, the parties separated and the wife sought a divorce in England. The husband responded by obtaining a divorce in Sharjah and also agreed that there was no valid marriage upon which the English Courts could found jurisdiction to grant a divorce. Hughes J held that there had been a valid marriage and, hence, the court had jurisdiction to grant a divorce.

The first point which was made was that, unless a marriage contracted in England and Wales purported to be of a kind contemplated by the Marriage Acts, it was not a marriage for relevant statutory purposes.165 The first relevant marriage--that is, the Islamic ceremony conducted in London--did not purport to be such a marriage and, hence, was not a valid marriage according to English law. As regards the second marriage, the purported marriage, that took effect as a revocation of the falaq or original divorce, that was not, as such, an effective remarriage under English law, but operated rather as a continuation of the original marriage. (166)

It, thus, appeared that, although neither of the ceremonies had created a marriage, which was valid under English law that was not to be the end of the matter. In Hughes J's words, (167) "The rule is well established that the law will wherever possible presume a lawful basis for long cohabitation between man and woman in the capacity of husband and wife." The judge continued by saying that it was important to bear in mind that that was not a presumption which prevailed over positive proof of the contrary and that it was no the cohabitation itself with constituted the marriage. "Rather," Hughes J went on, "the rule is that cohabitation and reputation of this kind has taken place and only strong and weighty proof that it has not will permit a contrary conclusion." Of particular importance in the context of the article was the ensuing comment that the presumption would be the more readily applied where the marriage being presumed to have taken place could have occurred with comparatively slight formality. (168) The authority relied upon for that recitation was two Nineteen Century cases: The Breadalbane Peerage Case (169) and de Thoren v A-G. (170)

In the instant case, were a lawful marriage to be presumed, Hughes J considered, (171) it must have been taken place in an Islamic country and must have been a lawful polygamous marriage. Further, it was common ground between the parties that the presumption must extend to the presumption of such a marriage where the parties' domicile permitted it. The reason for that view, and, largely, for Hughes J's decision, was that a lawful justification of kind of cohabitation involved could be found. On the particular facts of A-M, there was expert evidence to the effect that a lawful polygamous marriage could be entered into without any kind of public ceremony (172) or, indeed, the presence of the wife, provided that she had signed a power of attorney even without knowing what it was or its purpose. (173)

The judge then continued by noting that the strength of the presumption was such that its operation was not limited to vases of relatively informal marriages, such as that presently involved. "It has," Hughes J stated (174) "frequently been applied where what is presumed is a marriage which would have to have been by formal ceremony. Moreover, it is applied even in cases where there is clear evidence of some ceremony having taken place which the evidence suggested was not valid, even if the parties thought it was." In support of that view; the judge referred to de Thoren and, almost inevitably, Re Shepherd, George v Thyer (175) as well as Chief Adjudication Officer v Bath. (176) Bath was, thus, explained on the basis that there had been a marriage which, whilst assuming for the purposes of the decision that the ceremony was invalid, the parties believed to be valid. (177)

In those cases, Hughes J went on to say, there had been no suggestion that the parties had even become aware of any deficiencies in the ceremonies undertaken by them. Hence, it followed that the presumption could be applied even where the ceremony as it was understood could have been valid and there was no evidence to suggest any reasons why the parties should undertake another. As regards the operation of the presumption itself, Hughes J was of the opinion (178) that it clearly applied," ... because the question is not whether there is evidence, independently of the presumption, that the marriage took place, nor whether on the balance of probabilities it took place. Rather, the presumption itself supplies the evidence that it did and the question is whether that evidence is contradicted by clear and weighty evidence that it did not." It is submitted that that articulation is the clearest contemporaneous account of how the presumption, at least as it arises in some factual situations, is viewed judicially.

Of course, in A-M it was not necessary to apply that view to its fullest extent because Hughes J found that the parties did know, first, that the initial ceremony was not valid under the law of the country where they were then living. Indeed, as the judge pointed out,179 there was, second, an intention to remedy that situation by entering into a marriage which was so valid. Third, active steps had been taken with the object of achieving that goal. Finally, the judge found, (180) that the husband's talaq divorce in Sharjah would not be recognised by the courts in England as the parties were not domiciled, or habitually resident in, nor nationals of that State.

Thus, it was concluded (181) that there was an existing marriage which the courts in England had jurisdiction to dissolve, provided that the appropriate grounds were made out. However, the first marriage in England did not effect a marriage which was valid under English law, nor, one in which there was a jurisdiction for them to pronounce a decree of nullity. Hence, as in the two other English cases of recent origin earlier discussed a valid marriage, in the totality of the circumstances was found to exist, even though in A-M those surrounding circumstances were more complex and, as in Lockhart, the veracity of at least one of the parties was questionable. (182)

Having now placed it in appropriate contemporaneous context, it is now necessary to return to Lockhart. In reaching his decision (183) that he was prepared to declare that, for the purposes of s113 of the Family Law Act 1975 (184) that the parties were validly married, Carmody J had made various points which helped to illustrate the operation of the presumption of marriage in modern terms. (185) It should, though, be said that, though, he was prepared to make the declaration, Carmody J declined to state whether the marriage had taken place in Ghana on the date alleged. (186) In the event, the judge held that he was not satisfied that the respondent had discharged the onus of displacing the presumption.


The first point which instantly arises from the decision of the Full Court and, at first instance, of Carmody J is that the trial judge has shown himself to be more effectively in touch with judicial approaches demonstrated towards recent law than did the appellate court. It is, it is submitted, entirely appropriate that he has done so, even though that modern law has been enunciated elsewhere than in Australia. This is the more important because it is clear from those recent overseas cases that the focus of the presumption of marriage (probably in all of its forms) has altered significantly. Indeed, it would have been surprising--given the increasing importance of the phenomenon known as globalization--had it not done so. Although, globalisation tends to be perceived in macro terms, (187) that may not always or necessarily, be the case. So, Giddens refers (188) to," ... the intensification of world-wide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa." Although it may be almost certain that the sociologist Giddens did not have marriages with a foreign element in mind when he wrote, it will have been clear from the foregoing discussion that his general comments might be of more than peripheral application.

Thus, the vagaries of overseas record keeping, as in Lockhart itself, are now added to the hazards which previously existed (189) and, if that did not provide of itself a sufficiently added difficulty, (190) the innate hazards of private international law do not simplify the solution.

A third, and related major point, then arises: in all of the three cases from England, as well as Lockhart at first instance, the presumption of marriage was applied, albeit for different reasons which related to the circumstances in which it arose. Hence, despite Kirby and Watson, (191) it now seems clear from those cases that the presumption of marriage remains extremely strong. This is apparent, first, from reliance on older cases, notably Re Shepherd, (192) which might, properly at one stage, have been though to have taken the presumption as far as it might reasonably have been taken. However, Lockhart, at first instance, suggests that the presumption unchanged has remained sleeping until recently or had undergone some radical form of revivification. In the past, it may have served well but changing situations have, recently, forced it to be used as aggressively as at any time in the past. To borrow from another area of legal activity, the presumption seems to be been used in recent times at least as much as a sword as a shield. (193)

That very point takes us to a fourth--the potentially and actually aggressive use of the presumption raises the issue of rebuttal. Especially, the matter of the weight or quality of the evidence seems, if anything, more difficult to assess at the present. If one were to take the first instance decision in Lockhart as standing alone, it would seem all but impossible for the presumption to be rebutted, even though, in that case, it was clear that there was considerable uncertainty as to whether any ceremony of marriage had actually been performed. Conversely, though in Bath, (194) there was no doubt as to the ceremony itself or the way in which it was regarded by the parties. At the same time, considerable emphasis was placed on the policy of presumption of marriage. (195) Again, in Pazpena de Vire, (196) relying on Mahadervan, the standard was enunciated as being beyond reasonable doubt, (197) which, in turn, may very well be contrary to established evidentiary principles. (198)

However, Borkowski, in his discussion of the three English Cases (199) has suggested a more mechanistic approach to the matter as being a possible solution. Thus, he argues that," ... a minimum period of two years cohabitation would be appropriate in applying the presumption without ceremony and that in such a case the marriage would have been presumed to have commenced from the time when the necessary repute can be shown to have arisen." Whatever the attraction of such a view might be, two immediate objections arise. First, the time period he suggests might be insufficiently flexible to deal with the multiplicity of factual situations which might arise, particularly in relation to marriage with a foreign element. Second, on a more practical plane, ascertaining the commencement of the time of the commencement of repute might not be easy and its accuracy and, indeed, relevance might be susceptible to dispute, especially when some of the factors noted by Wade (200) are taken into account.

At the same time, Borkowski urges the need, at least in relation to the English cases, for a clarifying decision of the House of Lords and, in Australia, we could make the case claim to the High Court of Australia. Until then, the most we can probably say is that the presumption of marriage, in some form at least is still with us (and it should be remembered that its manifestations are not clearly delineated). And it is hard, whatever formulaic utterance one might choose, to rebut.


(1.) (2007) FLC 93-308

(2.) The facts are taken from the judgment by Carmody J at first instance. See (2006) FLC 93-292.

(3.) Ibid at 80, 891.

(4.) As well as in a traditional ceremony and celebration later in the village in which they were living together.

(5.) The forgery, the husband claimed, was for the purposes of changing the wife's name on her passport. See (2006) FLC 93-292 at 80, 982.

(6.) Kay, Warnick and May JJ.

(7.) (2007) FLC 93-308 at 81, 306.

(8.) Jacombe v Jacombe (1961) 105 CLR 355; Axon v Axon (1937) 59 CLR 395; Sheludko v Sheludko [1972] VR 83; Bonderenko v Bonderenko (1967) 10 FLR 23.

(9.) See below text at n 28

(10.) [1961] WLR 460, see below text at n 128.

(11.) (2007) FLC 93-308: 81, 309.

(12.) Ibid at 81, 310.

(13.) Ibid at 81, 310.

(14.) See below text at n44.

(15.) (2007) FLC 93-308 at 81, 311.

(16.) (1961) 105 CLR 355 at 359.

(17.) J. Thayer. (1898), A Preliminary Treatise of Evidence at the Common Law. 341.

(18.) (2006) FLC 93-292 at 80, 980.

(19.) Carmody J's emphasis.

(20.) (2003) FLC 93-127. For comment on this case, see F. Bates. (2005), "A Direction Enforced--Immigration and Australian Family Law in 2003," The International Survey of Family Law. Bainham Publishing House, 41 at 63ff. These matters were considered at first instance by Chisholm J: see In re Kevin (Validity of Marriage of Transsexual) (2001) FLC 93-087. For comment see F. Bates. (2003), "Of Courts and Cash--Australian Family Law in 2001," The Annual Survey of Family Law. Bainham Publishing House) 47 at 65ff.

(21.) Family Law Act 1975 s 43(a). For comment see G. Monahan and L. Young, Family Law in Australia (6th Ed. 2006): 98

(22.) Although those requirements might seem, prima facie straightforward, that is by no means always the case, see W v T (1998) FLC 92-808. For comment, see F. Bates, "The History of Marriage and Modern Law" (2000) 74 Aust. L.J. 844.

(23.) Family Law Act 1975 s 61. See, for application of this provision, Berriga v Berriga (1979) FLC 90-690; which followed Unger v Unger(No 2) (1968) ii FLR 301.

(24.) See Family Law Act 1975 ss 6, 104 and Marriage Act 1961 ss 88D2, 88c(1)(a), (2)(a).

(25.) (1990) FLC 92-154.

(26.) See Lengyel v Rasad and ass (1990) FLC 92-112.

(27.) De Facto Relationships Act 1984 (NSW).

(28.) Which the husband subsequently claimed was invalid on the grounds that, at the relevant time, he was married to another woman.

(29.) (1990) FLC 92-154 at 78, 075.

(30.) Ibid at 78, 074.

(31.) Nygh J considered. Ibid at, 78, 075, that to be regarded as such," ... the ceremony in question must be one which is recognisable as a ceremony of marriage but which for some defect, failed to gain legal efficacy. That defect may be the existence of a prior marriage which rendered the marriage bigamous."

(32.) (2006) FLC 93-292 at 80, 981. The judge also commented that, although it was not material in the context of the case at hand, it was interesting to note that even a polygamous marriage celebrated in another country was deemed to be a marriage for the purposes of division of property under Part VIII of the Family Law Act.

(33.) Ibid at 80, 989.

(34.) J.H. Wade, "Void and De Facto Marriages" (1981) 9 SydneyLR 356: 400.

(35.) Above at n31.

(36.) Se above n22.

(37.) See Marriage Act 1961 ss 44-46.

(38.) F. Bates, "Violence, Money and Informal Families in Australia and New Zealand" (1999) 7 Asia Pacific L.R 1.

(39.) This, for instance s 17 of the New South Wales Property (Relationships) Act 1984 provides that the Court shall not make an order," ... unless it is satisfied that the parties have lived together in a domestic relationship for a period of not less than 2 years."

(40.) (2006) FLC 93-292: 80, 982.

(41.) (1961) 105 CLR 355: 359per Dixon CJ, Fullager and Menzies JJ.

(42.) (1979) FLC 90-635: 78, 323. Though it should be said that that case involved the presumption that the marriage was validly celebrated--that is, the presumption of formal validity. See, F. Bates, "Formal and Essential Validity of Marriage--Some Reflections on the Presumption of a Valid Marriage" (1975) 49 AustL.J. 607.

(43.) Above text at n 2.

(44.) Above text at n 4.

(45.) (2006) FLC 93-292: 80, 982.

(46.) [1918] 1 KB 223.

(47.) Ibid at 226.

(48.) (1977) FLC 90-267.

(49.) Ibid at 76, 425.

(50.) Ibid at 76, 424.

(51.) [1970] 2 WLR 331 at 334. See also the comments of Salmon LJ, ibid, 335.

(52.) Above text at n 46.

(53.) (1977) FLC 92-267 at 76, 425.

(54.) (1997) FLC 92-736 at 83, 925.

(55.) Ibid at 83, 926.

(56.) Ibid at 83, 927.

(57.) (2006) FLC 93-292 at 80, 892.

(58.) Author's emphasis.

(59.) (1997) FLC 92-726 at 83, 927.

(60.) (2006) FLC 93-292 at 80. 893.

(61.) [1962] VR 372 at 373.

(62.) See also Goldenstedt v Goldenstedt (1886) 12 VLR 321; Axon v Axon (1937) 59 CLR 395; Jacombe v Jacombe (1961) 105 CLR 355.

(63.) Cf Dowling v Dowling (1884) 10 VLR (1 P to M) 49.

(64.) [1972] VR 82 at 86.

(65.) See Zoubeck v Zoubeck [1951] VLR 386; Milder v Milder [1959] VLR 95; Preston v Preston [1963] P 141. Crockett J took the view, ibid, that hose two latter decisions did not mean that courts could not act upon the presumption without expert evidence: see Jacombe v Jacombe (1961) 105 CLR 355; Christoforo v Christoforo [1948] VLR 193; Bondarenko v Bondarenko (19167) 85 WN (Pt 1) (NSW) 676.

(66.) The legacy of this failure in town planning may be seen even today. There have been serious and recent fires in outer suburbs of Sydney and floods in Maitland in New South Wales, in June 2007. These floods were something of a replication of other fifty years previously, which are still vividly remembered.

(67.) Above text at n 54.

(68.) (2006) FLC 93-292: 80, 983.

(69.) Indeed, ibid," ... there is not a single memento or keepsake to act as a tangible reminder of such a significant occasion in the lives of the parties."

(70.) Ibid, 80, 983.

(71.) Above text at n 38.

(72.) (2006) FLC 93-292: 80, 983.

(73.) The need for corroboration and associated warning has been abolished by s 164 of the Commonwealth Evidence Act 1995. The present writer strongly disagrees with that provision and its replacement in s.'65. His grounds for doing so are entirely pragmatic: see F. Bates, "Recent Cases on Corroboration" (1987) ii Crim.L.J. 357.

(74.) See, F. Bates, above n 42.

(75.) (1977) FLC 90-261.

(76.) Ibid at 76, 403.

(77.) Watson J seemed, ibid, concerned that many of the reported cases seemed to have been unduly influenced by standards applied in criminal cases. At the same time, the present writer has been continually critical of the utility of the application of "common sense" to matters of evidence law. See, for instance, F. Bates, "Psychiatric Evidence of Character" (1976) 5 Anglo-Am L R 99.

(78.) (2006) FLC 93-292: 80, 984.

(79.) Essentially, a term in Scots Law. For comment, see F. Bates, "Irregular Unions and Social Policy" 1980 Scots Law Times (News) 149.

(80.) P.E. Nygh and M. Davies, Conflict of Laws in Australia (7th Ed. 2002): 318.

(81.) [1901] 1 CH 456.

(82.) Ibid, 461.

(83.) Ibid, 462.

(84.) Ibid, 463.

(85.) See F. Bates, above n42: 609. In Lockhart, Carmody J stated that the marriage in Re Shepherd, (2006) FLC 23-292: 80, 985, the marriage appeared to have been saved by the length of cohabitation and the existence of children.

(86.) See generally, F. Bates, "The Presumption of Marriage Arising from Cohabitation" (1978) 13 UWALR 341, "The Presumption of Marriage in Australia--The End in Sight?" (1981) 14 UWALR 166; A Borkowski "The Presumption of Marriage" (2002) 14 Child and Family L.Q. 251.

(87.) (2006) FLC 93-292: 80, 984.

(88.) (1961) 161 CLR 355 at 360. Fullager and Menzies JJ concurring.

(89.) (1881) 6 App Cas 364: 371.

(90.) [2001] 1 FLR 463. For further comment on this decision, see below text at n 125.

(91.) (2006) FLC 93-292 at 80, 984.

(92.) Ibid, 80, 985.

(93.) Halisbury's Laws of England (4th Ed, 2001) at pesa 142.

(94.) (2006) FLC 93-292 at 80, 985.

(95.) See Piers v Piers (1849) 2 HLC 331; Re Shepherd; George v Thyer [1904] 1 Ch 456' Re Taplin; Watson v Tate [1937] 3 All ER 105; Elliott v Totnes Union (1892) 57 JP 151; Sheludko v Sheludko [1972] VR 82; Bondarenko v Bonderenko 91967) 85 WM (Pt 1) NSW 676; Re Taylor [1961] 1 All ER 55; Lauderdale Peerage Case (1885) 10 App. Cas. 692 (HL); R v Umanski [1961] VR 242.

(96.) See F. Bates, above nn42, 86.

(97.) (2006) FLC 93-292: 80, 397.

(98.) [2000] 1 FLR 8.

(99.) See Social Security Contributions and Benefits Act 1992 s 38.

(100.) See Marriage Act 1949 s 49(e), (f).

(101.) At the time of the hearing before the Court of Appeal, the respondent was aged 59.

(102.) [2000] 1 FLR 8: 14.

(103.) Above n 100.

(104.) The judge also pointed out that there were no other provisions in the Act which rendered void or invalid a marriage which was not carried out in accordance with the requirements as to place, persons present and, particularly, no provision at all when the parties were unaware that there had been a failure to comply with the Act.

(105.) In the words of Evans LJ, [2000] 1 FLR 8 at 14, "There can be no suggestion in the present case that either of the couple were aware of the defect. On the contrary, they were aged 16 and 19, they had recently come to this country and the ceremony was conducted by a senior churchman at the temple in the presence of the family and friends. A marriage contract was made between them. There is no statutory provision which renders the marriage void."

(106.) Ibid, 15 ff.

(107.) Piers v Piers 91949) 2 HL Cas. 331; De Thorn v A-G (1976) 1 App Cas 686; Breadalbane Peerage Case (1866) 2 HL Sc to Div 269; Sastry Veleider Avogenasy v Sembecutty Vaigelic (1881) 6 App Cas 364; Re Shepherd; George v Thyer [1904] Ch. 456; Re Green (1909) 25 TLR 222.

(108.) [2000] 1 FLR 8 at 18.

(109.) Scotland, for instance, as in De Thorn, above, or New York, in Green, above.

(110.) (Unreported) 6th February 1970.

(111.) Who had been referred to in the Commission's decision in Bath as, "... a former Chief Commissioner and an expert in matrimonial law." See [2000] 1 FLR 8 at 12.

(112.) See R v Hollis (1844) 10 Cl to F 534. For a quaint Australian analogue, in which that mischievous decision also figures, see W v T (1998) FLC 92-808. For comment, see F. Bates, above n 22.

(113.) [2000] 1 FLR: 18.

(114.) Ibid, 19.

(115.) Ibid, 19.

(116.) [1968], 482, 491

(117.) Ibid.

(118.) [2002] 1 FLR 8: 19. He trusted that the respondent would be paid her pension forthwith.

(119.) (2006) FLC 93-292 at 80, 987.

(120.) Above text at n 116.

(121.) [2000] 1 FLR 8: 23.

(122.) Schieman LJ, ibid at 21, agreed with Robert Walker LJ. It should be noted that R(G) 2/70, above at n 100, Evans LJ considered that it was clearly factually distinguishable from Bath. "If," Evans LJ said, ibid at 12, that case," ... decides that a marriage is 'invalid' meaning void or of no effect by reason of non-compliance with any of the statutory requirements, even in the absence of express statutory provision to that effect, then in my most respectful view that is not a correct statement of Law."

(123.) See F. Bates, "Same-Sex Marriages, Conflict of Laws and Public Policy--A Modern Commentary" (1999) 21 LiverpoolLR 49 at 49-55.

(124.) (1853) 4 HLC 1 at 123. Referred to by Lords Atkin and Wright in the better known case ofFender v St. John Mildmay [1938] AC 1 at 39.

(125.) [2001]! FLR 460. Above text at n 90.

(126.) Ibid, 463.

(127.) Ibid, 464.

(128.) [1961] 1WLR 9.

(129.) Ibid, 14.

(130.) [1904] 1 Ch 456: 462.

(131.) Above text at n 82.

(132.) [1904] 1 CH. 456: 462.

(133.) [1961] 1 WLR 9: 14.

(134.) Lord Evershed MR had also sought, ibid at 13, to distinguish cases such as Piers v Piers (1849) 2 HL Cas 331, where it had been established that the parties had, in fact, gone through a marriage ceremony.

(135.) [1961] 1 WLR 9: 22.

(136.) Ibid, 23.

(137.) [2001] 1 FLR 460: 465.

(138.) Above text at n 127.

(139.) [1964]: 233.

(140.) The Legislative Enactments of Ceylon 1938, Marriage General Ordinance.

(141.) [1964] P 233: 239.

(142.) The Legislative Enactments of Ceylon 1938, Marriage General Ordinance s 39.

(143.) Ibid s 33 (2).

(144.) [1964] P 233: 244.

(145.) (1849) 2 HL Cas 331.

(146.) (1837) 5 CL to F 163: 265.

(147.) [1964] P 233 at 246.

(148.) Ibid at 247.

(149.) [2001] 1 FLR 460: 467.

(150.) Ibid, 247.

(151.) See above text at n 123ff.

(152.) [2001] 1 FLR 460: 476.

(153.) Ibid, 483.

(154.) See Corbett v Corbett (Orse Ashley) [1971] P 83 at 108per Ormrod J.

(155.) See G (The Husband) v M (The Wife) (1885) 10 App Cas 171 at 181 per Seebourne LJ; Bullock v Bullock [1960] 1 WLR 975; Hayward v Hayward (Orse Prestwood) [1961] P 152; Thompson v Thompson [1957] P 19.

(156.) [1960] 1 WLR 975.

(157.) [2001] 1 FLR 460: 483.

(158.) Except where an estoppel per rem judicator applied, where different policy considerations applied.

(159.) [2021] 1 FLR 460 at 484.

(160.) Although he did suggest, ibid, that estoppel as regards mere formalities (that is, not going to the fundamentals of the concept of marriage) might have had more prospect of success.

(161.) [2001] 1 FLR 460: 484.

(162.) Above text at n 98ff.

(163.) Above text at n 66 ff.

(164.) [2001] 2 FLR 6.

(165.) Above text at n 100.

(166.) Above text at n 70.

(167.) [2001] 2 FLR 6: 17.

(168.) Author's emphasis.

(169.) (1876) LR 1 Sc to Div 182.

(170.) (1876(1 App Cas 686. Both, of course, were cases originating in Scotland where it might have been, even among the moneyed classes, that record keeping may not have been so sophisticated as in its southern neighbor.

(171.) [2001] 2 FLR 6 at 16.

(172.) Above text at n 168.

(173.) On the facts of A-M, Hughes J, [2001] 2 FLR 6 at 16, had accepted the wife's evidence that," ... she did sign documents at the husband's request and without applying her mind to what they were for."

(174.) [2001] 2 FLR 6 at 16.

(175.) Above text at n81.

(176.) Above text at n 98.

(177.) In addition, Hughes J stated that Bath was explicable on the basis that Evans L J had considered that there was insufficient evidence that the building in question was unregistered or that the parties were implicated in any lack of formality. The presumption led to the conclusion that the marriage was valid.

(178.) [2001] 2 FLR 6: 16.

(179.) Ibid, 17.

(180.) Ibid, 18.

(181.) Ibid, 24.

(182.) [2001] 2 FLR 6: 7, 11, 13, 17.

(183.) (2006) FLC 93-292: 80, 988.

(184.) See above text at n 1.

(185.) See, notably, text at n 32ff

(186.) All the information which he had regarding the date was," ... the word of the applicant which he did not believe and the hearsay record of a dubious marriage certificate."

(187.) Thus, W. Twining, Globalisation and Legal Theory (2000) at 4. writes that, "The term 'globalisation' refers to those processes which tend to create and consolidate a united world economy, a single ecological system and a complex network of communications that covers the whole globe even if it does not penetrate every part of it."

(188.) A Giddens, The Consequences of Modernity (1990) at 64.

(189.) Above text at n 66.

(190.) See P.M. North, Essays in Private International Law (1993) at 4ff.

(191.) Above text at n 75.

(192.) [1904] 1 CH 456.

(193.) See, for example, Watson's Stores (Interstate) Ltd v Maher (1988) 168 CLR 387.

(194.) Above text at n 98.

(195.) Above text at n 115.

(196.) Above text at n 125.

(197.) Above text at n 149.

(198.) See, for example, F. Bates, "Strength or Intensity? Some Reflections on the Standard of Proof in Civil Cases" (1980) 27 Chitty's LJ 335 and the cases and writings therein noted.

(199.) A. Borkowski, "The Presumption of Marriage" (2002) 14 Child and Family Quarterly 251: 266.

(200.) Above text at n 34.


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