Australia: Is your overseas marriage recognised in Australia?

Last Updated: 22 June 2017
Article by Simon Creek

If I was married outside of Australia is my marriage recognised in Australia?

Leading on from our previous article "Married Twice to the Same Person – Subsequent Ceremonies with unintended consequences" we have decided to continue with our international theme by exploring the topic: Marriages conducted overseas and whether they will be recognized in Australia.

When you announce your destination wedding, guests will typically ask, where? when? do I still need to buy you a gift? However what the typical family lawyer asks will your destination marriage be legally recognised when you come back to Australia?

Granted, it's not the most enthusiastic approach to a wedding announcement, but at least the lawyer is preparing the couple for the technicalities. Many couples don't realise that their overseas marriage is not automatically recognised in Australia and that the marriage must be registered. In order for couples to avoid the potential disappointment of returning to Australia to discover that their marriage is not recognised, it is important that they carefully consider and comply with a few legal requirements.

So here's what you need to know

Pursuant to the Marriage Act 1961 (Cth) an overseas marriage cannot be registered in Australia, however it will be recognised if the marriage is valid under the law of the country where the marriage took place and as long as the marriage, if conducted in Australia, would still been considered valid. Further, the following conditions also need to be met:

  1. The marriage is between a male and a female;
  2. Both individuals are 18 years of age or older;
  3. Both individuals are not already married at the time;
  4. That the bride and groom are not closely related, such as brother or sister; and
  5. Where one of the individuals has not consented to the marriage either through mistaken identity, mental capacity, duress or fraud.

The good news is that 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 issued by a competent authority in a foreign country is sufficient evidence of the marriage.

The bad news is that if the marriage took place during a period of civil strife or during a period of armed conflict within the country, then it may be impossible to conform with the local requirements. Therefore, the marriage may not be recognised as valid in Australia.

What is considered valid and not valid

Same-sex Marriages

Section 5(1) of the Marriage Act stipulates that marriage means the "union of a man and a woman". There are those that would believe they can avoid these restrictions by marrying in a country that has legalized same sex marriage, however Section 88EA of the Marriage Act also states that some sex unions solemnised in a foreign country will not be recognised as valid in Australia.

Polygamous Marriages

In the matter of Ghazel v Ghazel and Anor [2016] FamCAFC 31 the Family Court considered whether a potentially polygamous relationship could be considered valid, as the parties married in Iran (where it is legal to have up to four wives) in 1981 and moved to Australia in 2007, eventually becoming Australian citizens. The Court held that the potentially polygamous marriage in Iran was considered valid. However in the event that the Husband were to marry a second wife in Australia then that marriage would not be considered valid, as the Husband will only ever be recognised in Australia as being married to his first wife

In summary, if you want to make sure that your fabulous (and expensive) destination wedding does not go to waste by having to re-do your vows before a civil servant in a Court house, make sure you do your research, comply with the above requirements and try not to get married in a war zone.

If you are unsure about your destination wedding or the validity of your marriage you should seek specific advice from a specialist Family Lawyer.

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.

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Authors
Simon Creek
 
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