Sambucco v Sambucco & Ors  VSC 699
This novel case considered the effect of a religious (as distinct from a ‘legal’) marriage in respect of a Will. Interestingly, Justice Moore, in the Supreme Court of Victoria, determined that the circumstances of the religious ceremony gave rise to a valid ‘legal’ marriage, notwithstanding:
- that there was non-compliance with the formal documentary requirements under the Marriage Act 1961 (Cth) (Act); and
- the presiding Reverend’s own erroneous understanding about what was required for the legal validity of a marriage.
The Reverend performed the religious commitment ceremony on the mistaken belief that it did not constitute a legal marriage because a number of documentary requirements under the Act had not been met, including a formal notice of intention to marriage and statutory declaration. Nonetheless, Justice Moore did not accept that a ceremony in the nature of a ‘registration of marriage in the eyes of God’ is ‘fundamentally different from entry into a legal marriage’.
In determining that the parties’ religious ceremony constituted a valid marriage ceremony according to law, Justice Moore:
- pointed out that the Act does not recognise a dichotomy between ‘legal’ and ‘religious’ marriages;
- gave weight to the parties’ genuine intention to marry, and the fact that the ceremony was intended to be a ceremony of marriage according to the Rites of the Baptist Union of Australia; and
- ruled that the marriage had the effect of revoking the deceased’s Will.
On 8 June 2019, Mara Batur and the deceased were married in a ‘religious commitment ceremony’ conducted by Reverend David Rock of the Baptist Union of Victoria (an authorised celebrant). While the two had submitted a notice of intention to marry on 13 June 2019, the deceased was unexpectedly required to travel overseas on 14 June 2019 to receive urgent cancer treatment and the wedding did not proceed.
Instead, the couple decided to have a religious ceremony before travelling and intended to have a more formal wedding ceremony when they returned. As a result of the wedding being postponed, the notice of intention to marry was destroyed by Reverend Rock. Upon their return, Mara and the deceased told Reverend Rock that they planned to hold their formal wedding ceremony on 21 September 2019.
On 9 September 2019, the deceased passed away leaving a Will made in 2015 (Will). The estimated net value of his estate at the time of his death was approximately $5,300,000. The Will left the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies were the primary beneficiaries and his parents, his siblings as well as their spouses and their issue, and certain companies were secondary beneficiaries.
Upon application to the Registrar of Births, Deaths and Marriages, on 25 September 2019 Mara obtained a marriage certificate certifying her marriage to the Deceased.
On 31 January 2020, Mara obtained a grant for letters of administration to the deceased’s estate on the basis that:
- the marriage had the effect of revoking the deceased’s Will; and
- he therefore died intestate.
The application to revoke the grant
On 17 February 2021, the applicants filed a summons seeking the revocation of the grant of letters of administration on the basis that the Will was not revoked by marriage. The applicants submitted that the formalities prescribed by the Act were not observed so as to render the marriage legal, including the requirements under section 42 regarding the written notice of intention to marry and section 50 regarding the production of a marriage certificate.
The applicants also submitted that the marriage was void by operation of section 23B(1)(d)(ii) of the Act for lack of consent due mistake about the nature of the ceremony performed.
The application failed on the basis that the Court determined the deceased’s Will was revoked by his marriage to Mara on 8 June 2019.
In reaching this decision, Justice Moore relied in part on section 48(2) of the Act which prevents a marriage from being invalidated by reason of non-compliance with the formal requirements prescribed by the Act in the proceeding sections.
Justice Moore found that a religious marriage ceremony of the type described in section 45(1) of the Act (or a civil ceremony under section 45(2)), is the only indispensable requirement expressly identified by the Act which is necessary to solemnise a marriage between two people (who are not otherwise prohibited from marrying).
As for the contention by the applicants that Mara and Deceased were mistaken as to the nature of the ceremony, his Honour ruled that a mistake as to the effect of a ceremony does not vitiate a party’s consent to a marriage and so the marriage should not be voided. In finding this, his Honour accepted Mara’s submissions that she and the deceased were not mistaken as to ‘nature’ of the ceremony, but only as to its legal effect.
Please do not hesitate to contact the authors if you have any questions in respect of the validity of a Will, including any benefit to which you may be entitled.
This article was written by Simon Crawford, Partner and Angela Liaskos, Senior Associate.