This article will explore the topic of overseas marriages recognised in Australia. It has become common for couples to marry overseas. The idea of marrying your partner in another country can sound fun and exciting. Or perhaps you are a married couple wanting to move to Australia and have your marriage declared valid.
Whether you are an Australian citizen planning for an overseas wedding or a married couple wanting to move to Australia, you have to be aware of the legal requirements that you need to fulfil in order for Australia to recognise your marriage.
The Marriage Act 1961 outlines rules that govern the recognition of overseas marriages in Australia. This article deals with overseas marriages recognised in Australia.
When Are Overseas Marriages Recognised in Australia?
Australia will legally recognise your overseas marriage if you meet the following requirements:
- the law of the country in which you married considered your marriage as valid, and
- Australian law would recognise the marriage as valid if it took place in Australia.
If you married overseas, there is no legal requirement to have the marriage registered in Australia. However, you would need to have evidence of the marriage, such as a marriage certificate from the country the marriage took place. This would serve as proof of the validity of the marriage.
Section 88G (1) of the Marriage Act 1961 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 one 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. If these requirements are met, your marriage will be an overseas marriage recognised in Australia.
When an overseas marriage is not recognised in Australia:
Australia does not recognise all overseas marriages. Section 88D of the Marriage Act 1961 provides the grounds that would make an overseas marriage invalid under Australian laws. These grounds are as follows:
- at the time of the marriage, one of the parties was legally married to another person;
- one of the parties was not of marriageable age in Australia (18 years of age);
- the parties are in a prohibited relationship; meaning one is either an ascendant or descendant of the other, or they are siblings of the whole or half-blood; and
- consent to the marriage by either of the parties was not real consent because the party obtained consent from the other:
- under duress;
- one of the parties was mistaken as to the identity of the other party;
- they did not understand the nature of the marriage ceremony; or
- one of the parties was mentally incapable of understanding the nature and effect of a marriage ceremony.
The case of Ghazel v Ghazel and Anor  FamCAFC 31 gives a discussion on overseas marriages recognised in Australia. The Family Court ruled that a potentially polygamous marriage is not expressly included in the exceptions to the rule of recognition.
In this case, the wife sought for a declaration of the validity of her Iranian marriage in Australia. In 1981, the parties married under Iranian laws which allows a man to marry up to four wives. Moreover, they moved to Australia in 2007 and eventually became Australian citizens.
The Court ruled that the potentially polygamous marriage in Iran was valid. However, if the husband chooses to marry a second wife in Australia, the marriage would not be valid, as Australian laws do not recognise bigamy or polygamy. Australia will only recognise his marriage with his first wife. In this way, Australian law recognised their overseas marriage as valid. Despite the potentially polygamous marriage of the husband under Iranian laws, their case became one of the overseas marriages recognised in Australia.
Marriage in Australia: The Legal Requirements
One of the requirements for Australia to recognise your overseas marriages is that Australian law would recognise it if it had taken place in Australia.
This means that parties should meet the legal requirements to marry under Australian laws. To get married in Australia the parties should:
- not be already married;
- not be marrying an immediate family member such as a parent, grandparent, child, grandchild, brother or sister;
- be at least 18 years old, unless a court has approved a marriage where one person is 16 or 17 years old;
- understand what marriage means and freely agree to marry;
- use specific words during the ceremony;
- give a Notice of Intended Marriage form to an authorised marriage celebrant at least one month and no more than 18 months before the wedding; and
- an authorised marriage celebrant should officiate their marriage
It is important to note that the parties need not be Australian citizens or permanent residents of Australia. Furthermore, Australian law also recognises same-sex marriages.
Overseas Same-Sex Marriages
In Australia, gender and sex no longer play roles in the right to marry. In 2017, the Marriage Act 1961 redefined marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life.’
The legal effect of the amendment is that Australia law now recognises overseas same-sex marriages provided they fulfil all the requirements of a valid marriage. Overseas same-sex marriages have the same criteria as opposite sex overseas marriages recognised in Australia.
Why Is It Important to Seek Legal Advice?
This article provides general guidance on overseas marriages recognised in Australia. Whether or not Australia recognises your overseas marriage can depend entirely on the individual circumstances of your case.
We from JB Solicitors can provide specific legal advice for your situation. Furthermore, we are a group of family lawyers that strives to meet client’s needs.
Do you have any more questions on overseas marriages recognised in Australia? Do you want to confirm if your overseas marriage certificate is valid? A family lawyer can provide more information on the topic “overseas marriages recognised in Australia.”
Seek legal advice. Contact a family lawyer at JB Solicitors today.