Potentially Polygamous Foreign Marriage – are they recognised as valid in Australia?

We aim to deliver Just, Redemptive Outcomes®

Earlier this year, the Full Court of the Family Court in Ghazel & Ghazel and Anor,[1] considered whether a potentially polygamous, foreign marriage could be recognised as valid in Australia.

The Circumstances

In 1981, Mr Ghazel entered into a marriage with Mrs Ghazel in Iran, a country that permits a man to be married to more than one woman in certain circumstances.

After the couple later moved to England, they went through a marriage ceremony at an English Registry Office that same year. In the marriage certificate that was issued to them, the parties were described as “bachelor” and “spinster” respectively.

In 1984, the couple also attended the Iranian Embassy in the United Kingdom to register their Iranian marriage.

The couple subsequently immigrated to Australia in 2005 and became Australian citizens a few years later. They  filed for divorce in 2008. Importantly, the divorce application only referred to the marriage that occurred in England in 1981.

When Mr Ghazel later returned to Iran and married another woman in 2011, Mrs Ghazel commenced proceedings in the Family Court of Australia, seeking an order that her Iranian marriage with Mr Ghazel was still in tact and valid under Australian law.

Part VA of the Marriage Act 1961 (‘the Act’) deals with the validly of foreign marriages in Australia.  Generally, a marriage that is solemnised  in a foreign country, and is recognised as a valid marriage in that country at the time that it occurs, will be a marriage that is recognised as valid in Australia unless certain exceptions detailed in section 88D(1)-(5) of the Act apply.

Importantly, one such exception in section 88D(2)(a) states that a foreign marriage shall not be recognised as valid if:

“either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid”.

Primary Decision

Since 2004, the term ‘marriage’ has been defined under the Act as “the union of a man and a woman to the exclusion of all others voluntarily entered into for life”.

Part VA of the Act imports this definition of marriage when prescribing the circumstances in which a foreign marriage will be recognised as valid in Australia.

At first instance, Justice Hogan dismissed Mrs Ghazel’s application, reasoning that a potentially polygamous, foreign marriage could not be recognised in Australia under Part VA of the Act because such marriages simply did “not accord with the concept of marriage” under the Act. Considering that marriage in Australia must be to the exclusion of all others, Justice Hogan viewed that a “marriage solemnised in a foreign country must be monogamous for it to be recognised as valid in Australia”.

On 24 April 2015, Mrs Ghazel appealed the decision of Justice Hogan, and the Attorney-General of the Commonwealth accepted an invitation to intervene in the appeal proceedings to assist with the determination of the appeal.

Appeal

On appeal, the Full Court overturned the decision of Justice Hogan and declared that the Iranian marriage between Mr and Mrs Ghazel was recognised as valid in Australia.

From the outset, the Attorney-General emphasised a distinction between a polygamous marriage and a potentially polygamous marriage. The marriage of Mr and Mrs Ghazel was described as a potentially polygamous marriage.

The Full Court accepted the Attorney-General’s submissions that a potentially polygamous marriage would have been recognised under the Part VA of the Act prior to 2004 when ‘marriage’ was not defined. It was further accepted that the 2004 amendments were inserted for the sole purpose of prohibiting same sex marriage and were not introduced to deny recognition of a potentially polygamous marriage. This position was further supported by the fact that the object of Part VA of the Act is to give effect to the terms of  The Hague Convention on the recognition of marriages, which does not operate to prevent recognition of potentially  polygamous marriages.

The Full Court also accepted that the exception in section 88D(2)(a) (stated above) would not operate to deny validity, because neither party were married to another person at the time of their marriage.

This case serves as clarification that a potentially polygamous, foreign marriage will be valid in Australia unless it falls within one of the express exceptions to validity contained in the Act.

If you have a query regarding a potentially polygamous foreign marriage, contact us

Speak to a Business Development Officer today for an appointment with one of our Family Law Team lawyers. Call (07) 3252 0011.

[1] [2016] FamCAFC 31 (4 March 2016).