In Victoria s 13(1) of the Wills Act 1997 provides that marriage revokes a will unless the will is made in contemplation of the marriage.

Section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) (the Marriage Act) provides inter alia that a marriage will be void where the consent of either of the parties was not a real consent because … that party did not understand the nature and effect of the marriage Ceremony.

Background

On 8 June 2019, Marco and Mara participated in a ceremony described as a ‘religious commitment ceremony’ (the ceremony). They had decided to marry on 5 May 2019, approached the Revd D. Rock an authorised celebrant under the Marriage Act and asked him to officiate at their wedding ceremony.

The Revd D. Rock told Marco and Mara that they would need to fill in a notice of intention to marry under s 42 of the Marriage Act and subsequently provided them with a notice of intention to marry which they completed and signed on 20 May 2019. The notice specified their marriage date as 13 July 2019, and that the Revd D. Rock would be the celebrant.

Marco and Mara had a genuine intention to marry. The Revd D. Rock conducted the ceremony on an earlier date than planned because of the decision to seek urgent medical treatment for Marco overseas.

The Revd D. Rock was properly authorised to solemnise marriages. Importantly the ceremony conformed with the marriage requirements prescribed by The Baptist Union of Australia and was valid under Division 2 of Part IV of the Marriage Act.

While they were overseas, Marco and Mara advised Revd D. Rock that they intended to hold the further wedding ceremony on 21 September 2019. They returned to Australia on 13 August 2019 but unfortunately, Marco’s condition deteriorated and he died on 9 September 2019.

Marco left no issue. The secondary beneficiaries under the testamentary trust are his parents, siblings their spouses and their issue, and certain companies. In December 2019, Mara estimated the net value of his estate to be about $5,300,000.

On 10 December 2019, Mara obtained a marriage certificate from the Registry of Births, Deaths and Marriages which certified that she and Marco had been married.

Mara then applied for a grant of letters of administration of Marco’s estate based on intestacy as the Will had been revoked under s 13(1) of the Wills Act; which were granted on 31 January 2020.

The matter

The central issue in Re Sambucco [2022] VSC 699 is whether, by participating in the ceremony, Marco and Mara were lawfully married. Marco had cancer for approximately four years, and died on 9 September 2019, leaving a will made in 2015 (the Will). The Will gives the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies are the primary beneficiaries.

On 17 February 2021, Marco’s parents, Pier and Odilla,  and his sister, Luisa Sambucco (the Applicants), sought the revocation of the grant of letters of administration on the basis that Marco and Mara’s marriage didn’t comply with the ‘formalities’ prescribed by the Marriage Act; therefore the Will wasn’t revoked.

The starting point in finding the legal validity of Marco and Mara’s marriage is under s 48(1) of the Marriage Act which states;

‘subject to this section, a marriage solemnised otherwise than under the preceding provisions of this Division is not a valid marriage’.

As submitted on behalf of Mara, and acknowledged by counsel for the Applicants, s 48(2) saves a marriage from invalidity because of non-compliance with the various formal requirements prescribed by the preceding provisions in Division 2 of Part IV of the Act.  

Because the ceremony conformed with the form and ceremonial requirements for marriage prescribed by The Baptist Union of Australia, the ceremony was consistent with ss 41 and 45(1) giving it validity at law by operation of Division 2 of Part IV of the Marriage Act.

The decision

The Court held that the applicant’s case failed as far as non-compliance by Marco and Mara with the ‘formalities’ prescribed by the Act.

The Court accepted that a religious marriage ceremony prescribed by s 45(1) of the Act (or in the alternative, a civil marriage ceremony under s 45(2) of the Act), the only indispensable requirement expressly identified by the Act as necessary to solemnise a marriage between two people entitled to marry each other.

The Applicants’ submission that the ceremony was like a ‘registration of the marriage in the eyes of God’ and ‘fundamentally different from entry into a legal marriage’ fails for at least two reasons.

First, it proceeds from the false premise that the Marriage Act doesn’t give legal recognition to marriages that accord with recognised religious rites.

Secondly, it ignores the misapprehension under which Rev D. Rock, Mara and Marco laboured in their understanding that

‘Without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act, there could not be a marriage which was valid according to law’.

Re Sambucco [2022] VSC 699 at [117]

In dismissing the applicant’s summons for revocation the Court found that Marco’s Will was revoked by his marriage to Mara on 8 June 2019.

The appeal

In Sambucco v Sambucco [2023] VSCA 199 the applicants sought leave to appeal submitting (for the first time), that the marriage was void under s 23B(1)(d)(iii) of the Marriage Act; which provides a marriage is void where the consent of either of the parties was not a real consent because Marco or Mara, or both of them, did not understand the nature and effect of the marriage ceremony; as they thought it would not give rise to a legal marriage.

The applicants now accept that the ceremony conducted on 8 June 2019 was a legal marriage ceremony notwithstanding that Marco and Mara believed otherwise. Additionally they accept that the marriage was valid under s 23B(1)(d)(ii) as Marco or Mara were not mistaken as to the nature of the ceremony.

The applicants submitted that it was insufficient that the parties simply understand the nature of the ceremony, they must also understand its effect; ‘effect’ for these purposes extends to the legal effect of the ceremony. Proof that understanding of either the nature or effect was lacking would vitiate the party’s consent and render the marriage void.

The respondent submitted that the use of the word ‘and’ in s 23B(1)(d)(iii) showed that a marriage was only void under that provision if the party in question did not understand both the nature of the ceremony and its effect. A party’s consent would be ‘real’ if he or she understood either the nature or the effect of the ceremony. In that respect, the respondent revived the submission she had advanced at trial as to the construction of s 23B(1)(d) which the trial judge had found unnecessary to decide.

The decision

The Court of Appeal concluded that s 23B(1)(d)(iii) operates to render a marriage void on the ground that a party did not understand the nature and effect of the marriage ceremony, only if that lack of understanding was such as to mean that the person did not consent to the marriage. Assuming, Marco and Mara ‘did not understand the nature and effect’ of the legal effect of the ceremony the evidence is clear that they understood they were voluntarily committing to a union with each other for life.

Although Marco and Mara thought that this commitment was legally ineffective, it has not been established that this misunderstanding undermined the commitment of either of them or made their consent to the union any less real. The Court of Appeal considered it possible two people in such a situation would have decided not to go through with the ceremony, had they known it would be legally binding, perhaps preferring to take that step on a later occasion. If so, it might be established that those parties had not given their real consent to the marriage. But there is no evidence of that kind in this case.

In the present circumstances, the inference that should be drawn from the evidence submitted is that Marco and Mara wanted to commit themselves to each other for life before they travelled overseas and that their consent to do so through the ceremony of marriage performed by Rev Rock was not vitiated by their misunderstanding as to the legal position. In any event, however, the respondent contended that Marco and Mara considered themselves married and had therefore given their ‘real consent’ to the marriage.

The Court of Appeal concluded that s 23B(1)(d)(iii) operates to render a marriage void on the ground that a party did not understand the nature and effect of the marriage ceremony, only if that lack of understanding meant that the person did not consent to the marriage. In the present circumstances despite their misunderstanding about the legal effect of the ceremony in which they participated, Marco and Mara’s consent to the marriage was real.