If you are an Australian citizen planning to get married overseas there are certain legal requirements that you must be aware of to ensure that you are able to marry in that country and that your marriage will be recognised as valid when you return to Australia.
Validity of marriage
Part VI of the Marriage Act 1961 (Cth) (Marriage Act) makes provision for the recognition of foreign marriages in Australia. If the marriage ceremony of an Australian citizen takes place overseas, it will be recognised in Australia as a valid marriage providing 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 took place in Australia.
However, pursuant to s 88D(2) of the Marriage Act, there are exceptions to the validity of a foreign marriage, including:
- Where either of the parties was, at the time of the marriage, a party to a valid marriage with another person;
- Where either of the parties was not of marriageable age;
- Where the parties are within a prohibited relationship, defined as an ancestor, descendent or a brother and a sister;
- Where the consent of either of the parties was not a real consent because it was obtained by duress or fraud, the party was mistaken as to the identity of the other party or as to the nature of the ceremony being performed, or that party is mentally incapable of understanding the nature and effect of the marriage ceremony.
Same-sex marriages entered into overseas
Pursuant to section 5(1) of the Marriage Act a marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Whilst many couples hold the mistaken belief that they can avoid adherence to Australia's laws disallowing same-sex marriage, by marrying in a foreign country, s 88EA of the Marriage Act states that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.
Evidence of foreign marriage required by Australian law
There is no requirement to register a marriage in Australia which takes place overseas.
Section 88G(1)of the Marriage Act states that an original or certified copy of a marriage certificate or record of marriage issued by a competent authority in a foreign country is evidence of the occurrence of the marriage and of the validity of the marriage.
A "competent authority" is defined as:
- One that is prescribed in relation to a foreign authority by regulations of the Marriage Act; or
- Any other authority that is competent under the law in force in that country, to issue the certificate.
In order to ensure that your marriage will be recognised in Australia, it is important to be aware of and demonstrate the following:
- The marriage is recognised under the local law of the country;
- A marriage certificate or other record of marriage is issued by a competent authority in the country in question;
- Both parties are not currently marriage to some other person;
- Both parties are of marriageable age at the time of the marriage;
- The consent of the parties is real consent;
- The parties are not in a prohibited relationship; and
- The parties are not entering into a same-sex marriage
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.