Privet v Vovk [2005] NSWSC 1258

New South Wales Supreme Court

CITATION : Privet v Vovk [2005] NSWSC 1258

HEARING DATE(S) : 15/11/05

JUDGMENT DATE : 8 December 2005

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Probate of 1991 will granted to John Mellor as one of two executors; leave to Michael John Smith to come in and prove; Order that the Registrar of Births, Deaths and Marriages cancel the entry relating to the marriage of the plaintiff and the late Maria Lendvai.

CATCHWORDS : FAMILY LAW & CHILD WELFARE [8]- Validity of marriage- Jurisdiction- Wife deceased- Proceedings not between parties to marriage- Effect of Proclamation limiting State jurisdiction in matrimonial causes- Whether State court has jurisdiction to declare marriage invalid- Where a party to a marriage is deceased State court has jurisdiction to declare marriage invalid. FAMILY LAW & CHILD WELFARE [84]- Marriage- Capacity to give consent- Wife suffered stroke prior to ceremony- Cognitive function substantially diminished- Whether wife capable of appreciating responsibilities of marriage contract.

Births, Deaths and Marriages Registration Act 1995 LEGISLATION CITED : Family Law Act 1975 (Cth), ss 4, 39, 40, 105 Marriage Act 1961 (Cth), ss 23B, 42, 48

Dowal v Murray (1978) 143 CLR 410 Dunne v Brown (1982) 60 FLR 212 Evans v Brenton (1887) 3 WN (NSW) 129 CASES CITED : Hill v Hill [1959] 1 All ER 281 (PC) Park v Park [1954] P 112 Portsmouth v Portsmouth (1828) 1 Hagg Ecc 355; 162 ER 611 Smith v Bowden [1940] NZLR 749

Felix Privet (P) Leonid Vovk (D1) John Mellor (D2) PARTIES : Michael John Smith (D3) Leonid Vovk and John Mellor (Cross-Claimants) Felix Privet (Cross-Defendant)