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Published online by Cambridge University Press: 24 January 2025
Several recent cases in Australia have raised once again the recurrent historical problem of marriages of convenience. A “marriage of convenience”, or “sham marriage”, or “limited purpose marriage” occurs when a man and a woman enter a full status legal marriage and yet at that time one or both of them do not intend to fulfil some or all of the important legal and social duties culturally expected of a normal marriage. That is, although the parties consent to the ceremony or commencement of the marriage, they do not fully consent to its cultural and legal functions. Examples include marriages where at the time of the ceremony one or both parties have reservations about sexual intercourse, cohabitation, procreation, or intend to marry solely or predominantly for the purposes of satisfying immigration or emigration laws, acquiring money, Tertiary Education Assistance Scheme grants or minimising taxation.
1 For an historical and comparative study see J. H. Wade, “Limited Purpose Marriages” (1980) Modern Law Review (forthcoming). Parts of this comment are adapted from that article.
2 E.g. U.S. v. Rubenstein (1945) 151 F. 2d 915; Silver v. Silver [1955] 2 All E.R. 614; H. v. H. [1954] P. 258; Szechter v. Szechter [1970] 3 All E.R. 905; Kokkalas v. Kokkalas (1965) 50 D.L.R. (2d) 193; Johnson v. Smith (1968) 70 D.L.R. (2d) 374, overruled by Iantsis v. Papatheodrou (1971) 15 D.L.R. (3d) 53; Gardner v. Gardner (1970) 75 W.W.R. 667; Feiner v. Demkowicz (1974) 42 D.L.R. (3d) 165; In the marriage of Deniz (1977) 31 F.L.R. 114; In the marriage of Suria (1977) 29 F.L.R. 308; McKenzie v. Singh (1973) 29 D.L.R. (3d) 380, [1972] 5 W.W.R. 387; Truong v. Malia (1977) 25 R.F.L. 256;Leidigh, “Defense of Sham Marriage Deportations” (1975) 8 University of California at Davis Law Review 309.
3 (1945) 151 F. 2d 915.
4 Id. 918.
5 (1979) 22 A.LR. 361.
6 Crimes Act 1914 (Cth), s. 86(1)(b).
7 “I fail to see what justification there is for the criminal law thus seeking to lift what might be described, borrowing from another field, as the bridal veil” (1979) 22 A.L.R. 361, 364-365.
8 Granting a right of appeal in immigration and deportation decisions leads inter alia to the dilemmas of a massive backlog of appeals and then the use ofappeals as a tactic of delay. At present in Australia, only a limited right of appeal exists, namely in those cases where the potential deporteeis being deported due to a criminal conviction. The Administrative Appeals Tribunal Act 1975 (Cth), Schedule, Part 22, enables review of decisions under ss. 12-13 of Migration Act 1958 (Cth) e.g.Re Kannan and Minister for Immigration and Ethnic Affairs (1979) 23 A.L.R. 631. The Administrative Review Council is now considering extending rights of review of decisions under the Migration Act. See also Case Note, Drake v. Minister for Immigration and Ethnic Affairs infra p. 93.
9 (1979) 23 A.L.R. 631.
10 Administrative Appeals Tribunal Act 1975 (Cth), Schedule, Part 22.
11 Id. Part 22( 3). The Tribunal's review of a decision under the Migration Act 1958 (Cth), ss. 12, 13, 48 only has the status of a recommendation, though the writer understands that the Minister almost invariably complies with a recommen dation of the Tribunal. Cf. s. 43 of the Act whereby the Tribunal's decision normally is legally binding.
12 (1979) 23 A.L.R. 631, 639.
13 Id. 651-652.
14 Id. 639, 653.
15 E.g. H. v. H. [1954] P. 258; Szechter v. Szechter [1970] 3 All E.R. 905 (void emigration marriages due to absence of real consent due to fear for safety in communist regimes).
16 (1977) 31 F.L.R. 114.
17 The Department of Immigration and Ethnic Affairs apparently takes the attitude that whether the Family Court labelled the marriage “valid” or “invalid” is almost irrelevant; the Department makes its own decision whether it is a proper or improper marriage. “There is growing evidence that people unable to meet normal entry requirements are misrepresenting themselves as fiances in order to gain approval for migration. A high proportion do not marry on arrival. . . . [P]rocedures will be revised to help detect and exclude those who are engaged in such deceit and exploitation” per The Hon. M. J. R. MacKellar, M.P., Federal Minister for Immigration and Ethnic Affairs, Ministerial Statement “Immigration Policies and Australia's Population” H.R. Deb. 7 June 1978, Vol. 109, 3156; also Press Release, Minister for Immigration and Ethnic Affairs 30 June 1978.
18 Kelly v. Kelly (1932) 49 T.L.R. 99; Mehta v. Mehta [1945] 2 All E.R. 690.
19 Allardyce v. Mitchell (1869) 6 W.W.&a'B (1.E.&M.C.) 45; C. v. C. [1942] N.Z.L.R. 356.
20 Marriage Act 1961 (Cth), s. 23(1) (d)(ii). The trial judge's suggestion that a narrow interpretation of operative fraud has derived from “ecclesiastical” principles may be true of recent Protestant principles, but otherwise depends on which church, when and where; e.g. H. Swinburne, A Treatise on Spousals (published in 1686, written before 1621; republished Garland Publishing Inc. 1978) 140-148; M. Rheinstein, Marriage Stability, Divorce and the Law (1972) 21, 174-175.
21 (1977) 31 F.L.R. 114, 116-117.
22 Analogised to “total failure of consideration”, id. 117.
23 The duty to protect the “institution of marriage” is imposed on the Family Court bys. 43 of the Family Law Act 1975 (Cth).
24 Especially when void marriages have many of the same legal rights and duties attached, though probably not the same social rights and duties, as full status legal marriages; e.g. D. Tolstoy, “The Validation of Void Marriages” (1968) 31 Modem Law Review 656.
25 (1977) 29 F.L.R. 308.
26 S. 51(xxi) of the Constitution. Nevertheless, the legal definition and consequences are not without limits. They would have to be within some core historical meaning of the concept of marriage, e.g. Lane, “Federal Family Law Powers” (1978) 52 A.L.J. 121; A.G. for Victoria v. Commonwealth (1962) 107 C.L.R. 529, 580 (“the very nature of marriage”), 581 (“the essence of the estate of matrimony”), 581 (“most systems of law”), 589 (“the essence of the institution of marriage”, “inherent”), 576 (“Constitutional interpretation is affected by established usages of legal language”), 577 (“The usage of 1900 gives us the central type; it does not give us the circumference of the power”).
27 E.g. A.G. for Victoria v. Commonwealth (1962) 107 C.L.R. 529. See now ss. 5(4), 60, 71 of the Family Law Act 1975 (Cth); s. 23 of the Marriage Act 1961 (Cth).
28 E.g. Family Law Act, s. 6; Matrimonial Causes Act 1959, s. 6A (now repealed by Family Law Acts. 3); A.G. for Victoria v. Commonwealth (1962) 107 C.L.R. 529, 576-577 per Windeyer J.
29 E.g. Hyde v. Hyde and Woodmansee (1866) L.R. 1 P.&D. 130 (a potentially polygamous marriage was not one recognised by English law for the purposes of granting a divorce); Sowa v. Sowa [1961] 1 All E.R. 687 (potentially polygamous marriage not recognised for the purposes of maintenance application); Risk v. Risk [1951] P. 50 (potentially polygamous marriage not recognised for the purposes of granting a nullity decree).
30 Marriage Act 1961 (Cth), s. 23(1)(d)(i).
31 Family Law Act, s.4(1), “matrimonial cause” means inter alia “(b) proceedings for a declaration as to the validity of a marriage”, and in such proceedings “the court may make such declaration as is justified” (s. 113).
32 Marriage Act, s. 23.
33 Family Law Act, s. 43(a): “The Family Court shall ... have regard to 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” (italics added).
34 Family Law Act, ss. 60, 71. In England, it seems that there would be the additional problem that incidental relief cannot be granted ancillary to a declaration, as compared to a decree. E.g. Kassim v. Kassim [1962] 3 All E.R. 426, 431-432; Corbett v. Corbett [1970] 2 All E.R. 33, 50-51. No such distinction is made in the Australian Family Law Act.
35 See supra n. 29 and generally Sykes and Pryles, Australian Private International Law (1979) 230-238.
36 E.g. Reg. 16 of the Family Law Act Regulations, “[a] Judge or Magistrate may, at any time after the institution of proceedings,direct a stay of proceedings upon such terms as he thinks fit”; Family Law Act, s. 118, “[t]he court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings and make such orders as to costs as it thinks fit”. Possibly also contained in the inherent power of the court to dismiss or stay frivolous, vexatious or abusive proceedings e.g. In the marriage of Tansell (1977) 31 F.L.R. 87, 97.
37 Power for such a practice could, with strain, be found in s. 43, “the need to preserve and protect the institution of marriage”. Cf. Penny v. Penny (No. 2) (1966) 8 F.L.R. 128 (contrary to public interest under s. 37 of Matrimonial Causes Act 1959 (Cth) to grant a divorce on the ground of separation where the petitioner could not meet his financial obligations to his first and second wives and wished to marry a third wife).
38 Family Law Act, s. 90; N.S.W. Law Society Journal, Apr. 1977, 90. The Family Law Council, Third Annual Report 1979 (A.G.P.S.) 29-32.
39 E.g. Family Law Act,s.75(2)(i), (k), (o).
40 Id. s. 79(4) (a), (b).
41 Id. s. 64(1). The nature of the limited purpose agreement may assist in identifying the less qualified custodian.
42 E.g. married but still deported; married but still no entitlement to maintenance, .. property division or Testators Family Maintenance benefits; married, but intestacy claim subordinated to competing T.F.M. claims of relatives; married but no increased Tertiary Education Assistance Scheme grant, e.g. Student Assistance Act 1973 (Cth) and 1974 Rules thereunder. A higher student grant is paid to married students under the T.E.A.S. The difficulties of expense and civil rights have supposedly prevented detection of the alleged widespread limited purpose student marriages.
43 E.g. a married person is entitled to a share of an intestate spouse's estate; a married person is competent but not compellable as a criminal witness against his/her spouse e.g. Achina v. People (1957) 307 P. 2d 1083. (Parties held not to be married and therefore wife compellable to testify against husband. Court expressly held that its decision was limited to the application of the evidence statute, thereby implying that for other purposes the parties' marriage might have been recognised.) cf. Hoskyn v. Commissioner of Police for the Metropolis [1978] 2 All E.R. 136. (One year after knife attack, assailant male and his victim married only two days before his trial. Held that victim wife not compellable; possibility of marriage of convenience apparently not discussed.)