Wimmer v Wang [2020] NZFC 5092

Published 23 February 2021

Application for declaration as to validity of marriage — discovery — void ab initio — jurisdiction of Family Court — Family Proceedings Act 1980, ss 27, 29 & 31 — Family Court Rules 2002, rr 62, 141 & 334 —D’Arth v Basire [1946] NZLR 392 — In the Estate of Park (deceased), Park v Park [1953] 2 All ER 408 — Walters v Estate of Entwistle [2016] NZFC 10786. This was an application for a declaration as to the validity of a marriage. The applicant was the daughter of the deceased and beneficiary of his will, and the respondent had been married to the deceased for some 6 months prior to his death. The applicant claimed that her father had married the respondent under duress, and that the marriage ought to be declared void ab initio. The effect of declaring the marriage void would be that the deceased's last will would be valid, but if the marriage was deemed to be valid the deceased would have died intestate. This hearing was to determine interlocutory matters relating to discovery of social media conversations between the respondent and a friend who had organised the marriage, and whether the Court had jurisdiction to hear the case given that one party to the marriage was no longer alive. Section 27 of the Family Proceedings Act states that any person, not just a party to the marriage, may apply to the Court for a declaration as to the validity of a marriage, and did not state that both parties to the marriage must be living. Old case law, while not binding, supported the proposition that an application was possible even where a party to the marriage was deceased. The Court therefore had jurisdiction to hear the substantive case. In relation to the discovery application, the Court determined that the communications between the respondent and her friend were relevant to the question of arrangement of the marriage, and made an order that the respondent produce the communications as sought. Judgment Date: 3 July 2020.