Potentially Polygamous Marriages
According to the Marriage Act 1961 (Cth), “marriage” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (“the definition”). The requirement that a marriage be “to the exclusion of all others” prohibits polygamous marriages, which are marriages where an individual is entitled to marry more than one spouse.
Recently, the Full Court of the Family Court considered an appeal concerning the validity of a potentially polygamous foreign marriage. Mr and Mrs Ghazel were married in Iran in mid-1981. Their marriage was according to Iranian law which permits a husband to take three additional wives.
Following their marriage in Iran, Mr and Mrs Ghazel moved to England where, in late-1981, they went through a marriage ceremony at an English Registry Office. In 2008, the parties filed a joint Application for Divorce in Australia, referring only to their marriage in England. A Divorce Order was made. In 2011, Mr Ghazel married another woman in Iran. In 2013, an Iranian Court concluded that Mr Ghazel had entered into a second marriage, as Mr and Mrs Ghazel had not legally divorced according to Iranian law.
Mrs Ghazel’s Application
In 2014, Mrs Ghazel applied to the Family Court seeking an Order that her marriage to Mr Ghazel in Iran be declared valid. The Trial Judge refused to make that declaration on the basis that amendments made to the Marriage Act in 2004 prevent the recognition of a potentially polygamous marriage in Australia. Mrs Ghazel appealed the Trial Judge’s decision. The question for the Full Court was whether a foreign marriage, which is potentially polygamous when it is entered into, will be recognised as a valid marriage in Australia under the Marriage Act.
The 2004 Amendments
In 2004, “the definition” of marriage was inserted into section 5 of the Marriage Act. Although that amendment was made primarily to ensure that only heterosexual marriages would be recognisable in Australia, the ambit of the provision is wider than that, as it also excludes polygamous marriages. Amendments were also made making it clear that the definition applied to the provisions governing the recognition of foreign marriage in Australia. The Trial Judge had concluded, therefore, that a marriage solemnised in a foreign country must be monogamous for it to be recognised as valid in Australia.
The Attorney-General intervened in the case and argued that the 2004 amendments did not prevent the recognition of potentially polygamous marriages in Australia. The Commonwealth’s position, which the Full Court accepted, was that a potentially polygamous foreign marriage which would have been recognised under the Marriage Act prior to the 2004 amendments will still be recognised notwithstanding those amendments, and accordingly, in this case the first Iranian marriage would remain valid under Australian law.
In support of this position, the Commonwealth established that Mr and Mrs Ghazel’s marriage would have been recognised under the Marriage Act prior to the 2004 amendments. This is because their marriage was valid under the law of the place of celebration at the time of the marriage, being Iran, and none of the exceptions set out in the Marriage Act applied. The 2004 amendments did not change this fact.
Outcome of the Appeal
The Full Court allowed the appeal, holding that the issues in the case raised a matter of public interest. The Trial Judge’s Orders were set aside and a declaration of validity was made.
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