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Family Law

Should a ‘ potentially polygamous ‘ foreign marriage be recognised by Australia?

By March 31, 2016No Comments

By Gianna Huesch,

An Iranian-Australian woman who had failed in her bid to seek a declaration that her Iranian marriage be recognised as valid in Australia has had her appeal upheld. The declaration had originally been refused by the primary judge on the basis that amendments to the Marriage Act in 2004 prevented the recognition in Australia of a “potentially polygamous” marriage. But in a test case decision handed down this month, the Full Court of the Family Court of Australia found that the Iranian marriage should be recognised as valid in Australia and ordered the declaration be made.

In this case, the husband and wife had married in Iran in 1981 under Iranian law which permits a husband to take three additional wives, and as such, the marriage is described as a “potentially polygamous marriage”. As background, the couple had moved to Australia in 2003 and became Australian citizens. Prior to relocating to Australia they had been married also in England, and that marriage had been ended by a divorce in Australia in 2008. The husband went on to marry another woman in Iran in 2011, and married that woman in Australia in 2012. The first wife initiated proceedings in Iran relating to the second marriage, and an Iranian court determined that the Iranian marriage between the first couple was still in existence. The first wife then sought that Australia also recognise the original Iranian marriage as valid.

The appeal court agreed with the wife that this was “a test case with wider ramifications”, given the decision meant that parties to a marriage celebrated in a country which permitted polygamous marriages effectively became unmarried on changing their residence to Australia. Given this was a matter of public interest, and the parties were self-represented, the appeal judges requested the Attorney-General intervene in the appeal and assist the court with argument.

The appeal was concerned with the question of whether a foreign marriage, which is potentially polygamous when it is entered into, will be recognised as a valid marriage in Australia under Part VA of the Marriage Act 1961 (Cth), especially regarding amendments made to Part VA by the Marriage Amendment Act (Cth).  Part VA of the Marriage Act deals with the recognition of foreign marriages and applies to all marriages celebrated outside Australia. Part VA was inserted into the Act to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages which was signed in 1978. Significantly, the Marriage Amendment Act 2004 inserted for the first time the following definition of “marriage”: “Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

The primary judge had relied on expert commentary regarding the 2004 amendments which argued that this definition of marriage precluded marriages where a man is entitled to marry more than one wife. Even though there was no express prohibition on the recognition of a polygamous marriage, compared with the express prohibitions placed on same-sex marriage, the inclusion of the definition in the Act was argued to have the effect of placing polygamous marriage outside the concept of marriage for the purpose of recognition in Australia. However, the appeal court was satisfied that the focus here was on same-sex marriages and that there was no reference to polygamous marriages.

The solicitor-general emphasised that the question was whether a ‘potentially’ polygamous marriage—as opposed to an ‘actually’ polygamous marriage—would be recognised as valid. In arguments, he first established that a potentially polygamous marriage would have been recognised under the provisions of Part VA of the Act before the 2004 amendments, since it is not expressly included in the exceptions. The only exception that could be seen to apply–s88D(2)(a), being that one of the parties to the marriage was at the time of the marriage married to another person—clearly did not apply. Describing this as a ‘first in time rule’, the solicitor-general explained that the exception would only apply to recognition of a second marriage, not of a first potentially polygamous marriage.

Ultimately, the appeal judges agreed with the solicitor-general’s “persuasive” arguments that:

  • Potentially polygamous marriages are not to be denied recognition under the Hague Convention on the recognition of marriages.
  • The 2004 amendments did not make any change to s88A which provides that the object of Part VA is to give effect to the Hague Convention.
  • Parliament in making the 2004 amendments and inserting the new definition was concerned with same-sex marriages and “this court should strive against a construction that would have…broader ramifications.”

Regarding the words “to the exclusion of all others” in the definition of marriage inserted into the Marriage Act in 2004, the court noted:

“A marriage which is potentially polygamous at the outset, is still ‘to the exclusion of all others’ as a matter of fact until it actually becomes polygamous, but even that fact would not alter its recognition.”

The appeal judges accepted the solicitor-general’s submissions in support of the Commonwealth’s (and the wife’s) position that a potentially polygamous marriage is a marriage that can still be recognised as valid under Part VA of the Marriage Act notwithstanding the 2004 amendments, unless one of the exceptions applies–and the only exception that would apply would not apply to a first marriage which is potentially polygamous but only to any subsequent further marriages.

The appeal court therefore concluded that the primary judge’s decision was wrong, set aside the order dismissing the wife’s application for a declaration of validity of the Iranian marriage, and made the declaration of validity.

Are you an Australian who was married overseas and now require assistance with recognition of that marriage here, or perhaps with obtaining a divorce? Please contact Cristina Huesch or one of our soliciors here at Alliance Family Law, on (02) 6223 2400 for assistance.

(Source: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/31.html)

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