A common question that arises for us at The Norton Law Group is, “is my overseas marriage recognised in Australia?”. Under s88D of the Marriage Act 1961 an overseas marriage cannot be registered in Australia. However, it will be recognised if it was both valid under the law of the place of marriage, and valid if it had been conducted under Australian law.
Circumstances which will invalidate a marriage in Australian law are as follows:
- Where one party was already married (amounting to polygamy),
- If at least one party resided in Australia at the time of marriage and either party was not yet 18 years old,
- If neither party resided in Australia at the time of marriage and either are not yet 16 years old,
- Where the parties are considered too closely related (e.g ancestors and descendants, full or half-siblings,)
- Where the consent of a party was not adequate due to duress, mistake, fraud, or incapacity.
Two cases from the last five years provide an insight into how overseas marriage is dealt with in Australian courts. In Eldaleh  FamCA 1103, the court held it does not have jurisdiction to recognise an overseas marriage when the wife, who normally resided in Australia, was underage. The wife was 16 when married and 17 at the time of hearing. Under Australian law, a person who resides in Australia must be of marriageable age (18 years old) at the time of the marriage. The court held that while they could have applied for an exception if they are over the age of 16 years to marry under the age of 18, it was not possible for the legislation to work retrospectively. Thus, the marriage could not be recognised under Australian law.
In Ghazel and Anor  FamCAFC 31, the court took a factual approach in their reading of what was considered polygamy. The wife sought a declaration of the validity of the parties’ Iranian marriage in Australia. The couple was married in Iran under laws which allow for a man to have multiple wives in certain circumstances. The court held that while Iranian law allows for polygamy, this does not mean that any Iranian law will factually be polygamous. Despite the husband having the capacity to take another three wives, there was no evidence to suggest this had been done. Therefore, the marriage was held valid under Australian law.
Whether or not an overseas marriage will be recognised in Australia depends on the circumstances of each case. It is important to remember that marriage to an Australian citizen does not equate with the party obtaining Australian citizenship. The foreign citizen must abide by Australian immigration law. If you would like more information, contact one of our specialist family lawyers today.