Family Court ruling clarifies status of potentially polygamous marriages.
By Sage Leslie
In many countries around the world, polygamous marriage, where a person is married to more than one person, is still practiced legally. While they cannot be legally performed in Australia, questions have arisen about the legal status of marriages performed overseas, when one or more of the parties relocate to Australia.
The Marriage Act 1961 allows for the recognition in Australia of marriages performed overseas. To give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages, sections 88A to 88D were inserted into the Marriage Act. These sections provide for the recognition of marriages performed in a foreign country, so long as the marriage was valid under the relevant foreign law at the time it was performed. There are some exceptions to this, most notably where one or both of the parties was not of marriageable age at the time of the ceremony, where the parties are in a ‘prohibited relationship’ (which is where they are too closely related), or where consent to the marriage was not real.
Another notable exception is where at the time of the marriage, one of the parties was already in a marriage that would be recognised in Australia. This means that Australia will not recognise a marriage performed overseas if that person was already considered “married” by Australian law. This provision rules out the recognition of additional marriages in polygamous cultures – but what about the first marriage? Neither party is married to anyone else and the marriage, at that stage, is only “potentially polygamous”. A party may choose to marry another person under the law of that country at a later stage, but have not done so yet. It was generally understood that this section did not rule out the recognition in Australia of potentially polygamous marriages – after all, the parties may never choose to take another spouse – only those marriages that were additional to the first marriage.
The legal situation was complicated by the Marriage Amendment Act 2004 which introduced a definition of “marriage” into Australian law, “the union of a man and a woman to the exclusion of all others voluntarily entered into for life.” This provision was inserted by the government of the day (and supported by the Labor Party Opposition) to rule out the possibility of same-sex marriages, but the issue relevant to the current case was whether it also had the consequence of preventing the recognition of potentially polygamous marriages since they were not necessarily to be “to the exclusion of all others.”
In the case of Ghazel & Ghazel handed down on 4 March 2016, the Full Court of the Family Court of Australia was faced with this question. One of the parties was seeking to have the Court formally recognise her potentially polygamous marriage in a foreign country, in circumstances where her husband had since returned to their home country and taken another wife. The Court requested the intervention of the Attorney-General of the Commonwealth given the very serious ramifications this decision might have for Commonwealth law.
The Commonwealth argued that the insertion of the definition of marriage in 2004 should not be read as affecting the operation of the sections of the Marriage Act designed to give effect to the Hague Convention. Instead, the Commonwealth argued that foreign marriages, including those of the potentially polygamous kind, that would have been recognised before the insertion of the definition, should still be recognised. The Full Court of the Family Court agreed with these submissions and made a declaration that the woman’s marriage be recognised under Australian law.
This decision clarifies that potentially polygamous marriages entered into overseas may be recognised under Australian law. In contrast, overseas same-sex marriages are still not recognised in Australia.
The recognition of foreign marriages is a complex area of law. DDCS Lawyers can advise you in relation to this and other international aspects of family law. Please contact us on (02) 6212 7600.