Thinking of Marrying Abroad? How to Ensure Your Marriage is Recognised in Australia

If you are planning a marriage but would like to have the ceremony overseas, will this be recognised on returning to Australia?

The general rule is that, if a marriage is legally recognised in the foreign country where the ceremony takes place, then it will be recognised in Australia. The Marriage Act 1961 allows for the recognition of foreign marriages in Australia if:

• it was valid under the local law at the time it was entered into; and
• the marriage would have been recognised under Australian law if it had taken place in Australia.

The following rules must be followed if the marriage is to be recognised in Australia.

1. The marriage must be recognised under the law of the country where the marriage took place

Famously, Mick Jagger and Jerry Hall’s 1990 marriage was annulled in 1999. Their Hindu wedding ceremony in Bali was not recognised in Indonesian law. The annulment took place in England under similar principles to Australian law. It is interesting to note, however, although they lived as “married” for nine years, de facto relationships are not recognised in England. The so-called “common law marriage” is not recognised in English law.

2. You must obtain a marriage certificate or other official record issued by a competent authority in the country of the marriage

Jerry Hall claimed never to have seen a marriage certificate!

An original or certified copy of the marriage certificate issued by a competent authority in the foreign country is acceptable evidence of the marriage and its validity. A competent authority means one that is prescribed in relation to a foreign authority by the regulations of the Marriage Act; or, any other authority that is competent under the country’s law to issue the certificate.

3. The parties must not be married to another person

Polygamous marriages are not recognised in Australia, though potentially polygamous relationships are. This issue was considered in Ghazel v Ghazel (2016). The Full Court of the Family Court held that a potentially polygamous marriage (but where there is actually only one husband and wife) is a marriage under Australian law. If, however, the husband married again, the second marriage would not be legally recognised while the husband was still married to his first wife.

Initially the judge decided that the marriage (in Iran, where a husband can have up to four wives) was “potentially polygamous” and not recognised as valid in Australia. The problem, however, was that married couples moving to Australia, whose marriages were celebrated in countries where the local law permitted polygamous marriages, upon changing domicile to Australia became “un-married”. The Full Court of the Family Court subsequently ruled that a monogamous marriage from a country that allows polygamy, and therefore a potentially polygamous marriage, was valid in Australia.

4. The parties must be old enough to be legally married

The marriage will be invalid if one of the parties was below the age required for a legal marriage in Australia.

5. There must be genuine consent to the marriage by both parties

The marriage is void if consent was not real because of duress or fraud, mistaken identity, lack of understanding of the ceremony being performed, or the parties were mentally incapable of understanding the nature and effect of the wedding ceremony.

6. The parties must not be in a prohibited relationship

Incestuous relationships are illegal. The parties must not be too closely related to marry e.g. brother and sister.

7. It must not be a same-sex marriage (please note, the law on this is likely to change before the end of 2017)

Same-sex marriage is not yet legal in Australia. The appetite for change was tested in a nationwide voluntary two-month postal survey, in which 61% voted in favour of same-sex marriage. It is likely that legislation will be enacted before Christmas. Currently, Same-sex partners can be recognised as de facto couples in Australia under the Family Law Act 1975.

Same-sex marriages are legal in many other countries around the world. For example, same-sex marriages have been legal in the UK since 2014 (with the exception of Northern Ireland). In the Republic of Ireland, a referendum was held in 2015 asking whether the Constitution should be amended so that “marriage may be contracted in accordance with law by two persons without distinction as to their sex”. The proposal was supported by 62% of voters and legislation followed later in 2015. In New Zealand, same-sex marriage has been lawful since 2013.

What does it mean?

Polygamous marriages, marriages involving incestuous relationships or those where the parties are not of age are not recognised as valid in Australia. These parties cannot obtain a divorce in Australia either, as the court will not recognise that a valid marriage existed.

While polygamous marriages are not recognised in Australia, a potentially polygamous marriage (where there is actually only one husband and one wife) is a valid marriage under Australian law. A second marriage would not be recognised while the husband was still married to his first wife.

There is no need to register an overseas marriage in Australia. The foreign certificate can be produced as evidence.

Contact our Family Law Solicitors in Surry Hills, Sydney

Szabo & Associates, Solicitors, can provide you with expert advice on a wide range of family law matters. Please call us on 02 9281 5088 or fill in the online contact form.