Applications for nullity of a marriage are not very common in Australia.  More often than not they are for religious reasons such as wanting to remarry where the person’s faith does not permit marrying in a church for a divorcee.  Section 23B of the Marriage Act 1961 (Cth), as amended, sets out the grounds upon which a marriage may be void, which can be summarised as: 

• If either of the parties was already legally married to another person; 

• The parties are within a prohibited relationship; 

• The consent of either of the parties not a real consent because: 

• • It was obtained by duress or fraud; 

• • The party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or 

• • That party did not understand the nature and effect of the marriage ceremony; 

• Either of the parties is not of marriageable age. 

Trengrove & Bennes (No 2) [2026] FedCFamC1F 176 involved an application by a Husband for nullity of a marriage on the basis that either the wife lacked legal capacity to marry, or that his consent was obtained by fraud.  The husband was Australian and the wife was born in the Philippines.  Due to an administrator error her birth certificate stated that she was male however, there was no doubt that the wife was biologically female nor had she ever professed to be male.  The husband was aware of this error prior to the marriage and prior to fathering their child. 

The parties married in Australia in 2019 and separated on 25 January 2025.  The husband had previously filed an Application for Divorce which was dismissed as the 12-month separation period had not expired.  He now sought a nullity or, in the event that such an application was unsuccessful, a divorce. 

Interestingly, the husband’s stated reason for marrying the wife, sworn on Affidavit, was because he wished to eventually live in the Philippines and he was aware that he would need a 13A resident visa, thus requiring: 

• A legally valid marriage to a Filipina woman; and 

• Registration of that marriage with the Philippine Statistics Authority. 

Accordingly, the husband set out to find a Filipina woman to satisfy that requirement.  Thereafter he met and courted the wife through Facebook messenger.  Trouble appears to have started brewing when the wife sought a Temporary Partner Visa in Australia with a birth certificate that listed her as male.  The parties relocated, temporarily to the Philippines in 2023, returning in August 2024, before separating on a final basis on 25 January 2025.  The thrust of the husband’s case appeared to be his assertion, without expert evidence, that the marriage would not be recognised in the Philippines.  The court ultimately found that none of the required grounds were satisfied and the application dismissed. 

One wonders who the perpetrator of a fraud may have been given the husband’s stated reasons for marrying.