Australian Family Law: Can a Marriage Be Declared Void If One Party Was Already Married?

Based on the authentic Australian judicial case Zhenya & Shi [2025] FedCFamC2F 238, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 2)
• Presiding Judge: Judge Turnbull
• Cause of Action: Application for a Decree of Nullity of Marriage
• Judgment Date: 25 February 2025
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Decree of Nullity
  • Keyword 3: Void Marriage
  • Keyword 4: Bigamy
  • Keyword 5: Marriage Act 1961 (Cth)
  • Keyword 6: Family Law Act 1975 (Cth)

Background:

This case involves an application brought by the Applicant, Ms Zhenya, seeking a formal declaration from the Court that her marriage to the Respondent, Mr Shi, is legally void from its inception. The central issue is not a dispute over the breakdown of the relationship but rather a fundamental question of legal validity. The Applicant alleges that at the time she participated in a marriage ceremony with the Respondent in 2019, she was still legally married to another person, a fact which, if proven, would render her second marriage a legal nullity under Australian law.

Core Disputes and Claims:

The core legal question before the Court was whether the marriage solemnised between Ms Zhenya and Mr Shi in 2019 was void on the ground of bigamy.

The Applicant’s sole claim was for the Court to issue a Decree of Nullity, which would formally declare that no valid marriage ever existed between herself and the Respondent. The Respondent did not contest the application and, in fact, agreed with the relief sought.

Chapter 2: Origin of the Case

The matter originated from a straightforward but profoundly significant legal error. In 2019, Ms Zhenya and Mr Shi participated in a marriage ceremony in Victoria, Australia, with the intention of creating a legally binding union. At the time of this ceremony, however, Ms Zhenya was still technically married to her estranged partner, Mr D.

While Ms Zhenya’s relationship with Mr D had ended, the legal process to formally terminate that marriage had not yet concluded. The final Divorce Order dissolving her marriage to Mr D was not made until 2020, a year after her ceremony with Mr Shi.

Upon realising this critical timing issue, Ms Zhenya initiated proceedings in the Federal Circuit and Family Court of Australia on 12 November 2024. Her application was not aimed at ending a valid marriage but rather at obtaining a judicial declaration that, due to her pre-existing marital status, a valid marriage with Mr Shi was never legally possible and therefore never came into existence.

Chapter 3: Key Evidence and Core Disputes

The case was determined not by conflicting witness testimonies but by an examination of official documentation that created an undeniable timeline of events.

Applicant’s Main Evidence and Arguments:

• Affidavit Evidence: Ms Zhenya filed two affidavits outlining the sequence of her marital history.
• Marriage Certificate (2019): She produced the certificate from her marriage ceremony with Mr Shi. Critically, this document incorrectly stated her conjugal status at the time as “divorced.”
• Divorce Order (2020): This was the decisive piece of evidence. It was the final Divorce Order from her marriage to Mr D, which was officially made in 2020. By annexing this document to her second affidavit, she provided irrefutable proof that her first marriage was still legally subsisting when she entered into the second marriage in 2019.
• Core Argument: The Applicant’s argument was simple and based on statutory law: because she was lawfully married to Mr D at the time of her marriage ceremony with Mr Shi, the latter marriage was void from the beginning under the Marriage Act 1961 (Cth).

Respondent’s Main Evidence and Arguments:

• Affidavit Evidence: Mr Shi filed an affidavit in which he did not challenge the Applicant’s evidence.
• Core Argument: He consented to the Court making a Decree of Nullity, effectively agreeing that the marriage was void for the reasons stated by the Applicant.

Core Dispute Points:

There were no factual disputes. Both parties agreed on the timeline of events. The only “dispute” was the legal status of the 2019 marriage, which the Court was required to determine by applying the relevant law to the agreed facts. The incorrect information on the 2019 marriage certificate was noted but was legally irrelevant to the outcome, as the certificate itself cannot validate a marriage that is void by law.

Chapter 4: Statements in Affidavits

The affidavits served as the primary vehicle for presenting the undisputed facts to the Court. Ms Zhenya’s affidavits constructed a clear, chronological narrative supported by documentary evidence. Her first affidavit established the circumstances of her 2019 marriage to Mr Shi. Her second affidavit provided the crucial evidence—the 2020 Divorce Order from her marriage to Mr D—which proved the legal impediment to her second marriage.

This documentary evidence was non-negotiable. It created a legal fact that could not be overcome by witness statements or arguments. The strategic intent of her affidavits was to present the Court with a straightforward legal equation: a subsisting marriage in 2019 plus a second marriage ceremony in 2019 equals a void marriage.

Mr Shi’s affidavit, by consenting to the application, simplified the proceedings immensely. It removed any need for cross-examination or a contested hearing, allowing the Judge to make a determination based solely on the papers and legal principle.

Chapter 5: Court Orders

The matter proceeded directly to a final determination based on the affidavit evidence filed by both parties. Given that the core facts were not in dispute and the Respondent consented to the orders sought, there was no need for complex interlocutory directions or a prolonged trial process.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing for this matter was not a dramatic courtroom showdown but a methodical application of law to a clear set of facts. With both parties in agreement, the Judge’s role was to verify the evidence and confirm that the legal requirements for a Decree of Nullity were met.

The core of the judicial reasoning rested on the intersection of two key pieces of evidence: the date on the 2019 marriage certificate (between Ms Zhenya and Mr Shi) and the date on the 2020 Divorce Order (between Ms Zhenya and Mr D). The timeline was unambiguous. When Ms Zhenya stood at the ceremony with Mr Shi, the law still considered her to be married to Mr D.

The Judge’s analysis was therefore not a matter of discretion but of legal obligation. The law on this point is absolute. A person cannot be legally married to two people at the same time in Australia. In delivering the judgment, His Honour underscored the definitive nature of this principle.

I am satisfied that Ms Zhenya was lawfully married to another person when her marriage to Mr Shi was solemnised.

This statement formed the bedrock of the judgment. It directly links the established fact—the pre-existing marriage—to the legal consequence. The finding was inescapable and led directly to the Court’s conclusion that the second marriage was void from its inception, regardless of the intentions or beliefs of the parties at the time.

Chapter 7: Final Judgment of the Court

THE COURT ORDERS THAT:

1. Pursuant to section 51 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Ms Zhenya and Mr Shi in 2019 at Suburb B, Victoria, Australia, is declared null and void.
2. A Decree of Nullity is made in respect of the marriage solemnised in 2019 between Ms Zhenya and Mr Shi.
3. All extant applications are dismissed.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

The jurisprudential value of Zhenya & Shi lies not in establishing a new precedent but in its clear and unambiguous affirmation of a foundational principle of Australian marriage law: the prohibition of bigamy. It serves as a stark reminder that marriage is a legal status, and the ceremonies and certificates associated with it are only valid if the underlying legal prerequisites are met. The case demonstrates that even with the consent of both parties to the second “marriage,” the law will not and cannot recognise a union that is void ab initio (from the beginning). It highlights the non-discretionary role of the Court when faced with a clear statutory prohibition.

Judgment Points:

A notable point is the legal irrelevance of the incorrect information on the marriage certificate. While the certificate stated Ms Zhenya was “divorced,” this had no power to cure the fundamental legal defect. This illustrates a critical principle: administrative records or declarations by the parties cannot override the objective legal reality of a person’s marital status. The Court’s decision was based on the legal fact of the prior marriage, not the documentary error.

Legal Basis:

The judgment was anchored in two key statutory provisions:
1. Marriage Act 1961 (Cth), Section 23B(1)(a): This is the operative provision that renders a marriage void. It states that a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person.”
2. Family Law Act 1975 (Cth), Section 51: This section empowers the Court to make a Decree of Nullity on the ground that the marriage is void.

The Judge’s decision was a direct application of these sections to the proven facts.

Evidence Chain:

The “victory” for the Applicant was secured through an unbreakable chain of documentary evidence that left no room for doubt:
1. Proof of First Marriage: The existence of the marriage to Mr D was established.
2. Proof of Second Marriage Ceremony: The 2019 marriage certificate with Mr Shi proved this event occurred.
3. Proof of Subsisting First Marriage: The 2020 Divorce Order from the first marriage conclusively proved that it was still legally in effect at the time of the 2019 ceremony.

This simple, three-part evidence chain made the outcome a foregone conclusion.

Judicial Original Quotation:

In reaching the final conclusion, the Judge articulated the direct causal link between the evidence and the law, leaving no ambiguity:

The evidence establishes that Ms Zhenya was legally married to Mr D at the time her marriage to Mr Shi was solemnised. Ms Zhenya was not able to legally marry Mr Shi until after the Divorce Order, made in relation to her marriage with Mr D, became absolute in 2020.

This reasoning demonstrates a clear, linear logic. The Judge identifies the fact (the prior marriage), notes the legal incapacity it created, and specifies the event that would have removed that incapacity (the finalisation of the divorce), which had not yet occurred at the relevant time.

Analysis of the Losing Party’s Failure:

In this unique case, there was no “losing party” in the adversarial sense, as the Respondent consented to the orders. The fundamental “failure” was the act of entering into a void marriage in the first place. This likely occurred due to a misunderstanding of the legal finality of a divorce. Many people consider themselves “separated” or “divorced” emotionally or physically long before the law does. This case underscores that legal status is a technical matter. The failure was proceeding with a marriage ceremony before the Divorce Order from the previous marriage had become final and absolute, a waiting period that exists to ensure all legalities are concluded.

Implications

1. Divorce Is Not Final Until It Is Legally Absolute: Separation is not divorce. Even after a court grants a divorce, there is typically a waiting period of one month and one day before it becomes final (absolute). You are not legally free to remarry until that period has passed.
2. A Void Marriage Is a Legal Nullity from the Start: A marriage that is void on grounds of bigamy was never legally a marriage. It is not a matter of ending a marriage, but of the Court formally declaring that one never existed.
3. Certificates Do Not Create Legality: A marriage certificate is evidence of a ceremony, but it does not in itself make a marriage valid. If a fundamental legal impediment like a pre-existing marriage exists, the certificate is legally meaningless.
4. Consent Cannot Cure a Void Marriage: Even if both parties in the second “marriage” entered into it willingly and in good faith, their consent cannot validate a union that is prohibited by law.
5. Seek Legal Clarity Before Remarrying: If you have been previously married, it is absolutely essential to obtain official documentation confirming that your divorce is final and absolute before entering into a new marriage ceremony.

Q&A Session

1. What would have happened if Mr Shi had not agreed to the Decree of Nullity?
   The outcome would almost certainly have been the same. The validity of the marriage is a matter of objective legal fact, not the parties’ opinions or desires. As long as Ms Zhenya could prove with her documentary evidence that she was married to Mr D at the time of the 2019 ceremony, the Court would have been legally obligated to declare the marriage to Mr Shi void. Mr Shi’s opposition would have made the process more complex and costly but would not have changed the final legal result.

2. Could Ms Zhenya face legal consequences for entering into a bigamous marriage?
   Bigamy is a criminal offence in Australia. However, prosecution is rare and generally reserved for cases involving deliberate deception or fraud, rather than what appears to be a genuine mistake or misunderstanding about the finality of a divorce. In a case like this, where the party herself brings the matter to the Court for rectification and there is no evidence of malicious intent, criminal charges are highly unlikely.

3. What happens to any property the couple acquired while they thought they were married?
   Because the marriage is void, the parties cannot use the property settlement provisions of the Family Law Act 1975 (Cth) that apply to married couples. However, if they lived together in a genuine domestic relationship, they may be considered a “de facto couple” under the Act. If they meet the criteria for a de facto relationship (e.g., lived together for at least two years, have a child together, or made substantial contributions), they can still apply to the Court for a property settlement under the de facto relationship provisions of the Act. Alternatively, they could rely on principles of equity, such as a constructive trust, to resolve property disputes.

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[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Family Law – Application for a Decree of Nullity (Bigamy)
• Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

This section provides a general guide to related family law concepts, which may become relevant for parties emerging from a void marriage.

Core Test (Existence of De Facto Relationship – Section 4AA):

Should parties from a void marriage seek to divide property, they may need to establish they were in a de facto relationship. The Court considers:
* Duration of the relationship: A total period of at least 2 years is the general rule, though exceptions apply.
* Nature and extent of common residence: Whether the parties lived together and for how long.
* Whether a sexual relationship exists: This is a factor but not determinative on its own.
* Degree of financial dependence or interdependence: This includes joint bank accounts, sharing of expenses, and any financial support provided by one to the other.
* Ownership, use and acquisition of property: Whether assets were acquired jointly or separately.
* Degree of mutual commitment to a shared life: Evidence of future plans and a shared life together.
* The care and support of children: While not applicable in this specific case, it is a key factor.
* Reputation and public aspects of the relationship: How the relationship was presented to family, friends, and the public.

Property Settlement – The Four-Step Process:

If a de facto relationship is established, property is divided using this process:
1. Identification and Valuation: All assets, liabilities, and superannuation of both parties are identified and valued to determine the total net asset pool.
2. Assessment of Contributions: The Court assesses the financial contributions (e.g., wages, inheritances), non-financial contributions (e.g., renovations, unpaid work in a business), and contributions to the welfare of the family (e.g., as a homemaker or parent) made by each party.
3. Adjustment for Future Needs (s 90SF(3) Factors, equivalent to s 75(2)): The Court considers factors that will affect the parties’ future, such as age, health, income-earning capacity, and care of any children, and may adjust the percentage split based on these needs.
4. Just and Equitable: The Court reviews the proposed division to ensure that the overall outcome is fair and equitable in all the circumstances of the case.

Parenting Matters (Section 60CC of the Family Law Act 1975):

Though not relevant to Zhenya & Shi, this is the central test for parenting disputes:
* Primary Considerations: The Court must prioritize two main factors: the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm. The need to protect the child from harm is given greater weight.
* Additional Considerations: These include the child’s views, the parents’ capacity to provide for the child, the nature of the child’s relationship with each parent, and the practical difficulty and expense of the child spending time with a parent.

3. Equitable Remedies and Alternative Claims

When statutory property settlement is unavailable (e.g., if a de facto relationship cannot be established), parties may have recourse to equitable principles:

• Promissory / Proprietary Estoppel:
  • Test: Did one party make a clear promise or representation about property (e.g., “This house is as much yours as it is mine”)? Did the other party then rely on that promise to their detriment (e.g., by spending money on renovations or forgoing career opportunities)? Would it be unconscionable (grossly unfair) for the first party to go back on their word?
  • Result Reference: Even without a formal contract, a court of equity may prevent a party from denying the other’s interest in the property.
• Unjust Enrichment / Constructive Trust:
  • Test: Has one party been enriched (e.g., by receiving the benefit of the other’s financial contributions or unpaid labour) at the other party’s expense, in circumstances where it would be unjust for them to retain that benefit?
  • Result Reference: The Court may impose a constructive trust, declaring that the legal owner of a property holds a portion of it in trust for the other party, effectively recognising their beneficial interest.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds:

• De Facto Property Claim: Parties must generally have been in a de facto relationship for a total period of at least 2 years.

Exceptional Channels (Crucial):

• Family Law (De Facto): The 2-year duration requirement for a property claim can be waived if:
  • There is a child of the relationship.
  • The applicant made substantial contributions and a failure to make an order would result in serious injustice.
  • The relationship was registered under a prescribed state or territory law.
• Suggestion: Do not assume you cannot make a claim simply because you do not meet the standard 2-year period. Always assess whether one of the critical exceptions applies to your circumstances, as they provide a vital pathway to justice.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

• It is recommended to cite this case in legal submissions where the validity of a marriage is in question due to a pre-existing, undissolved marriage. It serves as a clear, modern authority for the application of section 23B(1)(a) of the Marriage Act 1961 (Cth).

Citation Method:

• As Positive Support: When your matter involves a party who entered a marriage ceremony while still legally married to another, citing Zhenya & Shi can strengthen the argument that the second marriage is void ab initio.
• As a Distinguishing Reference: This case is unlikely to be used for distinguishing, as its facts are very direct. However, if an opposing party were to argue that a mistake on a marriage certificate could somehow validate a marriage, this case could be cited to refute that proposition.

Anonymisation Rule:

• In all submissions and discussions, the parties must be referred to by their professional procedural titles: the Applicant and the Respondent.

Conclusion

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

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Disclaimer
This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Zhenya & Shi), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.
The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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