Potentially polygamous marriages recognised under Australian legislation

by Karen Devey on April 19, 2016

Karen Devey

The Full Court of the Family Court of Australia has recently considered whether a potentially polygamous marriage (as opposed to an actually polygamous marriage) should be recognised as valid under Australian law (Part VA of the Marriage Act 1961 (Cth)).

In the matter of Ghazel & Ghazel & Anor [2016], Justices Finn, May and Austin decided, that ‘potentially polygamous’ marriages are recognisable in Australia under the relevant legislation. The Full Court overturned the Trial Judge’s findings that the potential for a marriage to be polygamous rendered that marriage to be unrecognisable in Australia.

The matter before the Full Court involved the marriage of Mr and Mrs Ghazel, which took place in Iran in 1981. At the time of the parties’ Iranian marriage, the law in Iran permitted Mr Ghazel to take up to three additional wives, although Mrs Ghazel was his only wife at the time of their marriage. The legal possibility of taking more than one wife made the marriage ‘potentially polygamous.’ Later that year, the parties relocated to live in England and went through a second marriage ceremony at the English Registry Office and they registered their Iranian marriage with the Iranian Embassy in the UK in 1984. The parties and their two children relocated to Australia and they all subsequently obtained citizenship in 2007.

In 2008, the parties jointly applied for a Divorce in Australia. Their joint Application only referred to their marriage in the United Kingdom and a Divorce Order was made on 18 March 2008.

In 2011, Mr Ghazel married another woman in Iran. Mrs Ghazel commenced Court proceedings in Iran about the legality of Mr Ghazel’s second marriage and in the context of these Iranian proceedings, Mrs Ghazel sought a declaration from the Family Court of Australia about the validity of her marriage.

The Trial Judge cited the husband’s right to take up to three additional wives under Iranian law at the time he married Mrs Ghazel and concluded that this meant the marriage was ‘potentially polygamous.’ As foreshadowed above, the Trail Judge found that the conclusion that parties’ Iranian marriage was ‘potentially polygamous’ meant that this marriage was not recognisable under Australian law and accordingly, Mrs Ghazel’s request for a declaration was dismissed.

Mrs Ghazel appealed the first instance judgement, and on appeal, the Full Court invited the Commonwealth Attorney-General’s department to intervene in the proceedings, an invitation they accepted.

In determining the Wife’s appeal, the Full Court outlined the law which determines when a foreign marriage will, and will not, be recognised in Australia. in summary, the default position is that Australia recognises marriages solemnised in a foreign country (pursuant to Part VA of the Marriage Act). For a foreign marriage to be recognised in Australia, that marriage needs to be recognised as valid under the relevant foreign law at the time it was solemnised or is so recognised at the time which the validity of the marriage falls to be determined. There are a number of limited exceptions to the default position, being that at the time the marriage was entered into:

  1. Either spouse was married to another person;
  2. One or both of the spouse was not at marriageable age in Australia,
  3. The spouses were in a prohibited relationship in Australia, or
  4. The consent of either spouse was not real consent.

If any of the above exceptions exist, the marriage is recognisable in Australia.

In 2004, a definition of marriage was inserted into the definition section of the Marriage Act (by way of the Marriage Amendment Act 2004). Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. The 2004 amendments clarified that unions between a man and another man, or a woman and another woman, solemnised in a foreign county, would not be recognised as a marriage under Australian law.

It was submitted on behalf of the Attorney-General, that the 2004 amendments to the Marriage Act did not operate to deny recognition to potentially polygamous marriages. It was argued that potentially polygamous marriages were not expressly excluded from being recognised in Australia, and as such the default position should apply to potentially polygamous marriages. The Attorney-General further referred to the senate debate on the 2004 amendments and noted that the purpose of the amendments was not to expressly exclude recognition of potentially polygamous marriages. They also submitted that a marriage that becomes actually polygamous after the fact should also be recognised as a valid marriage under Australian law.

The Full Court accepted the Attorney-General’s evidence about the status of potentially polygamous marriages in Australia. In finding that the parties’ Iranian marriage was recognisable in Australia, a declaration as to the validity of the marriage was granted to Mrs Ghazel.

Proving the validity of a marriage, in this case a foreign marriage, is often necessary to invoke the Court’s jurisdiction to deal with other issues such as divorce or property proceedings between parties. Determining whether Australian Courts have jurisdiction to hear a dispute is a technical legal issue that requires specialised family law advice. At Armstrong Legal, our experienced family law solicitors can assist with providing advice about whether there is jurisdiction under Australian Legislation to determine your family law dispute.

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