Privet v Vovk [2005] NSWSC 1258

Privet v Vovk [2005] NSWSC 1258

The Court had jurisdiction to determine the validity of the purported marriage after Maria Lendvai's death. The evidence, particularly that of marriage celebrant Judith Naunton and medical and allied-health evidence of severe cognitive impairment, showed that the deceased did not appreciate that she was getting married and lacked the required real consent. Non-compliance with s 42 of the Marriage Act 1961 (Cth) did not itself invalidate the marriage, but the evidence supported cancellation of the registration of the purported marriage and probate of the 1991 will.

Jurisdiction
Australia
Judgment Date
08 December 2005
Procedural Posture
Probate Proceedings With Cross Claim Concerning Validity of Purported Marriage / Final Judgment After Hearing
Outcome
Cross-claimants succeeded; probate of the 1991 will was granted to John Mellor with leave to Michael John Smith to come in and prove, the marriage entry was ordered cancelled, and the plaintiff was ordered to pay costs.
Legal Topics
['validity of Marriage' 'capacity to Consent to Marriage' 'jurisdiction of State Supreme Court in Matrimonial Causes After Death of a Party' 'probate of Wills' 'births, Deaths and Marriages Registration']
['family Law' 'succession and Probate'] ['validity of Marriage' 'capacity to Consent to Marriage' 'jurisdiction of State Supreme Court in Matrimonial Causes After Death of a Party' 'probate of Wills' 'births, Deaths and Marriages Registration']

Case Brief

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Procedural Posture

Probate Proceedings With Cross Claim Concerning Validity of Purported Marriage / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales had jurisdiction to determine the validity of the purported marriage after the death of one party to the marriage.' 'Whether Maria Lendvai gave real consent to the purported marriage, including whether she was mentally capable of understanding the nature and effect of the marriage ceremony.' 'Whether non-compliance with s 42 of the Marriage Act 1961 (Cth) affected the validity of the purported marriage.' 'Whether probate should be granted of the 1991 will rather than the 2002 will propounded by the plaintiff.']

Ratio Decidendi

The Court had jurisdiction to determine the validity of the purported marriage after Maria Lendvai's death. The evidence, particularly that of marriage celebrant Judith Naunton and medical and allied-health evidence of severe cognitive impairment, showed that the deceased did not appreciate that she was getting married and lacked the required real consent. Non-compliance with s 42 of the Marriage Act 1961 (Cth) did not itself invalidate the marriage, but the evidence supported cancellation of the registration of the purported marriage and probate of the 1991 will.

Court Disposition

Cross-claimants succeeded; probate of the 1991 will was granted to John Mellor with leave to Michael John Smith to come in and prove, the marriage entry was ordered cancelled, and the plaintiff was ordered to pay costs.

Orders

  • ['Probate of the will of Maria Lendvai dated 12 June 1991 granted to John Mellor, one of the two executors named therein, with leave to Michael John Smith, the other executor, to come in and prove.' 'Matter referred to the Registrar in Probate to complete the grant.' 'Registrar of Births, Deaths and Marriages to...