Tricked into marriage

Many people, in recent years, have sought a decree of nullity on the basis that they have been tricked into marriage by fraudulent misrepresentations. These applications have routinely failed because the Family Court, applying ancient principles of canon law, has held that fraud is only relevant if it goes to the nature of the ceremony or the identity of the person, and not the motivation for entering the marriage. This article argues that many of these cases are wrongly decided. They have been treated as if they are all governed by the same principles, when important distinctions need to be made between different categories of case. The courts have failed to apply standard principles of statutory interpretation to the Marriage Act 1961 (Cth). Furthermore, the view that fraudulent misrepresentations can never provide the basis for a decree of nullity needs to be reconsidered as a consequence of the enactment of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). Parliament has now made it a criminal offence to force someone into marriage, and the definition of forced marriage includes deception. If such deception is treated as negating consent, it would be anomalous to hold that the marriage remains valid.