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Recognition of overseas marriages

Information about when marriages celebrated in other countries are not valid in Australia.

Changes to the Marriage Act 1961 mean that overseas marriages between same-sex couples are recognised under Australian law from 9 December 2017.

Australia is a signatory to the Hague Convention on the celebration and recognition of the validity of marriage. This document states that marriages will be valid in other countries if the marriage was performed according to the laws of the state where the marriage took place. A marriage will also be valid if the marriage has been recognised as valid in another country. However, there are exceptions allowed if the foreign country's marriage law is 'manifestly incompatible' with the public policy of the country that is required to recognise the validity of the marriage.

See HCCH—26: Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriage.

This convention is reflected in Part VA—Marriage Act 1961 (Cth).

When an overseas marriage will not be valid

A marriage celebrated in another country will be recognised as valid in Australia unless:

  • either party is already married to another person and that marriage is legally recognised as valid in Australia
  • an Australian resident has married overseas and is either under 18 years or they have married someone who is under 18 years (and they do not have parental approval and an order from a judge or a magistrate)
  • the parties are in a prohibited relationship:
    • between a person and ancestor or descendant of the person (including an adopted child)
    • between brother and sister, whether full- or half-blood (including an adopted brother or sister)
  • the consent of either of parties was not real consent for reason of:
    • duress or fraud
    • mistaken identity
    • mistake as to nature of ceremony
    • mental incapacity of either party
  • either party is under the age of 16 years.

See ss. 23B, 88D, 88E, 88EA—Marriage Act 1961 (Cth).

Evidence of an overseas marriage

A marriage solemnised overseas will be recognised as valid in Australia if a party can produce either an original or certified copy of the record of the marriage issued by the authority of the country where the marriage took place. This is prima facie evidence of a valid marriage.

See s. 88G—Marriage Act 1961 (Cth).

Multiple marriages

If a first marriage in a foreign country is not recognised as valid in Australia, but a second marriage occurs that complies with Australian law and is therefore valid, the second marriage will be recognised as the valid marriage.

Validity of polygamous marriages

Impact of Marriage Amendment Act 2004

The Marriage Act 1961 was amended to define marriage as being 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'.

The court considered the effect of this definition on the validity of foreign marriages in Ghazel and Ghazel. This case involved a marriage in Iran between a man and a woman. This marriage was the first of 2 polygamous marriages. The court considered whether the first marriage was invalid due to it being a 'potentially polygamous' marriage. It was argued that the marriage was invalid because it was not 'to the exclusion of all others' because of the subsequent marriages.

The court rejected this view after looking at the Second reading speech, which was entirely focused on the issue of same-sex marriages. It contained no reference to polygamous marriages.

See Ghazel and Ghazel and Anor [2016] FamCAFC 31 (4 March).

Court's power to decide if marriage is valid

Courts have power to determine the status of a marriage and declare whether it is valid or not. If a person was married overseas and their husband has multiple wives, the wife can ask the court for a declaration that her existing marriage is not valid. This may be useful for her to know whether she needs a divorce before she can remarry, or whether she is legally single.

See s. 113—Family Law Act 1975 (Cth).

More information

Legislation

Marriage Act 1961 (Cth)

  • Part 5A—recognition of foreign marriages
  • s. 12—authorisation for person 16 0r 17 in exceptional circumstances
  • s. 23—grounds on which marriages are void
  • s. 23B—grounds on which marriages are void
  • s. 88D—validity of marriages
  • s. 88C—application in a foreign country
  • s. 88G—evidence of marriage

See Marriage Act 1961 (Cth).

Family Law Act 1975 (Cth)

  • 113—proceedings for declarations

See Family Law Act 1975 (Cth).

Case law

Ghazel and Ghazel and Anor [2016] FamCAFC 31 (March 2016)

Held: Polygamous marriages made in another country are not void because of amendments which define marriage to be 'to the exclusion of all others'.

See Ghazel and Ghazel and Anor [2016] FamCAFC 31 (4 March).

Reference

Hague Convention on Celebration and recognition of the validity of marriage

This sets out the agreement that marriages will be valid in other countries if the marriage complies with the laws of the country where the marriage took place. The convention allows for exceptions to this where the marriage in question is 'manifestly incompatible' with the public policy of the state of celebration.

See HCCH—26: Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriage.

Updated