Potentially Polygamous Marriages Allowed in Australia

The Full Family Court has found that potentially polygamous marriages entered into in foreign jurisdictions are recognised by Australia in Ghazel v Ghazel and Anor [2016] FamCAFC 31

Background:

Mr and Mrs Ghazel were married in mid-1981 in Iran, a country whose law permits husbands to take up to three additional wives in certain circumstances. The union was therefore ‘a potentially polygamous marriage’. By 2007 the couple, along with their two children, had moved to Australia and become citizens. The couple separated around 2008 and in 2013 Mr Ghazel married Ms C in Iran. Mr Ghazel’s marriage to Mrs Ghazel and Ms C are both considered valid and current by Iranian authorities. In 2014, Mrs Ghazel sought a declaration from the Family Court of Australia that her 1981 Iranian marriage be valid in Australia under section 88D of the Marriage Act (the Act).

Section 88D comes under Part VA (s 88A – 88G) of the Act which was inserted in 1986 to give effect to The Hague Convention on Celebration and Recognition of the Validity of Marriages (The Hague Convention) which allows foreign marriages to be recognised in Australia provided they don’t fall into any exceptions listed in Part VA. In 2004 the Marriage Amendment Act (the Amendment Act) inserted the definition of marriage into the act for the first time under section 5(1) stating marriage ‘means the union of a man and woman to the exclusion of all others, voluntarily entered into for life’. The Amendment Act also inserted section 88B(4) stating ‘to avoid any doubt, in this part (including section 88E) marriage has the meaning given by 5(1)’ and section 88EA that a union solemnised in a foreign country between ‘a man and another man or a woman and another woman must not be recognised as a marriage in Australia.’

Trial:

Ms Ghazel’s application was dismissed by Hogan J who held that given the definition of marriage under section 5(1) which is applicable to the recognition of foreign marriages ‘means that a marriage solemnised in a foreign country must be monogamous for it to be recognised in Australia’ and that therefore a potentially polygamous marriage cannot be recognised in Australia.

Held by the Full Family Court:

Given that the ruling by Hogan J had the potential for couples who are married in countries where potentially polygamous marriages are valid to become un-married when the couple becomes domicile in Australia, the Attorney-General was requested to intervene when Ms Ghazel appealed to the Full Court. The court untimely upheld the Solicitor-General’s submissions that a foreign marriage will be valid unless it comes under one of the exceptions in Part VA and that a potentially polygamous marriage is not one of the exceptions. The Solicitor-General pointed out that section 88D would only preclude the recognition of a second marriage citing a ‘first-in-time-rule’. The Solicitor-General relied on intention of Parliament in 1986 to give effect to The Hague Convention which contemplates polygamous marriages. It was also held that the 2004 amendments to the Act did not change this position since the intention of parliament was to preclude same-sex marriages not potentially polygamous marriages. It was also accepted that that the words ‘to the exclusion of all others’ supported the conclusion that a potentially polygamous marriage can still be recognised.

Boyce Family Law
Family Lawyers Sydney

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