DOES AUSTRALIA RECOGNISE YOUR MARITAL STATUS? WHAT ABOUT POLYGAMY?

Recognition of overseas marriages in Australia

Australia is an ever evolving multicultural society with many marriages occurring in offshore locations. What happens then, in the event that the relationship does not work out as planned? If you are married overseas, can you get divorced in Australia? In what jurisdictions is the divorce recognised?

The simple answer is that if you were legally married, wherever the marriage was conducted, you can apply for a Divorce in Australia. Difficulties however, may arise in circumstances where; the country in which you were married allows you to be married to more than one person, or married to someone of the same sex.

In the case of Ghazel and Anor [2016] FamCAFC 31 (4 March 2016) Mr Ghazel was born in Iran, and Mrs Ghazel was born in England. The parties married in Iran in 1981 and subsequently moved to England where they participated in a marriage ceremony in an English Registry Office. They also registered their Iranian marriage at the Iranian Embassy in the United Kingdom.

The party’s and their children then moved to Australia, and in 2007 the four members of the family became Australian citizens. On 22 February 2008, Mr and Mrs Ghazel made a joint application for divorce, but only referred to the marriage in the United Kingdom. On 18 March 2008 the divorce order was made.

In 2011 Mr Ghazel married another woman in Iran and then married yet another woman in Australia in 2012. Mr Ghazel’s first wife, who he had divorced, became aware that her marriage that occurred in Iran was still valid and that no divorce had been registered there.

On 19 November 2014 Mrs Ghazel instructed solicitors to make an application in the Family Court in Australia, seeking that the marriage between her and Mr Ghazel conducted in 1981 in Iran, be declared valid in accordance with section 88D of the Marriage Act 1981 (‘Act’). Mr Ghazel filed a response opposing the declaration sought by Mrs Ghazel.

On 27 March 2015, the matter was heard and Judge Hogan held that the definition of a marriage is “the union of a man and woman to the exclusion of all others voluntarily to the exclusion of all others” and therefore polygamous marriages are not recognised in Australia.

On 24 April 2016 Mrs Ghazel filed an appeal, and in her submissions asserted that hers was a test case. She asserted that if Judge Hogan’s judgement stood, then people legally married in countries where polygamous marriages were allowed, would have their marriages considered to be void should they subsequently reside in Australia. The Court decided that this raised a matter affecting public interest and therefore requested that the Attorney General intervene in the proceedings to assist.

Upon the attorney-general intervening in the proceedings they asserted that potentially polygamous marriages should be recognised and remain valid under Australian law unless one of the exceptions apply. The Court decided that if a marriage is legal within the country in which it was conducted then it will be recognised in Australia, which includes polygamous marriages. This however, does not mean that you can legally enter into a polygamous marriage in Australia.

The Act also provides that certain unions are not marriages, and include unions solemnised between a man and another man, or a woman and another woman, in any country.

Australia is likely to hold a Plebiscite in the near future, in order to determine the majority public opinion, and legislate on whether or not Australia will recognise same sex marriages.

Alison Brown

Associate

Koffels Solicitors & Barristers