Have you been married overseas? Do you now live in Australia? Ever thought about whether your marriage would be valid under Australian Law?
Our investigation starts with the Marriage Act 1961 (Cth). This piece of legislation contains the basic rules of what “marriage” means, how it can be effected and who may perform the ceremony.
If you were married overseas, your marriage can still be recognised in Australia. The idea is that marriage is marriage, regardless of where the ceremony takes place in the world. Such thinking is the natural consequence of increased globalisation, not only in travel but also in the cross-recognition of international concepts and laws.
There are usually two considerations that are relevant when determining whether your intentional marriage is recognised in Australia. These are:
That your marriage is considered valid under the laws of the country in which with international marriage took place; and
That the concept of marriage being effected overseas is compatible with the definition of marriage in Australia.
The current definition of “marriage” under the Marriage Act is ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’. Therefore, concepts of marriage that are recognised in some countries but would not be recognised in Australia include polygamous unions, unions of children and forced unions.
What about Divorce Orders granted overseas?
Decrees of divorce or annulment obtained overseas are also capable of recognition Australia. Much like recognition of marriages, the divorce decree needs firstly to be recognised as valid in accordance with the laws of the overseas jurisdiction. Secondly, you will need to show that either you or your former spouse were ordinarily resident, domiciled or nationals of the overseas jurisdiction at the time of the divorce.
However, the Court will not recognise a divorce order if any of the following apply:
are a denial of natural justice (for example, was the Court process fair and neutral, or was it deficient?);
the dissolution or annulment had been obtained by fraud; or
recognition would be manifestly contrary to public policy.
Public policy is a fuzzy concept, and of course notoriously difficult to define. Examples of foreign decrees that were not recognised in Australia include:
Divorce procured by duress.
Divorce based on foreign laws which the Court thought were fundamentally unfair.