Legal status of marriage to more than one person in Australia
Polygamy is not legally recognised in Australia. Legally recognised polygamous marriages may not be performed in Australia,[1][2] and a person who marries another person, knowing that the previous marriage is still subsisting, commits an offence of bigamy under section 94 of the Marriage Act 1961, which carries a maximum penalty of 5 years imprisonment.[3] However, the offence of bigamy only applies to attempts to contract a legally recognised marriage; it does not apply to polygamous marriages where there is no attempt to gain recognition for the marriage under Australian law.[4] Whether or not either or both partners were aware of the previous subsisting marriage, the second marriage is void.[5] Foreign polygamous marriages are not recognized in Australia. However, a foreign marriage that is not polygamous but could potentially become polygamous at a later date under the law of the country where the marriage took place is recognized in Australia while any subsequent polygamous marriage is not.[6] While under Australian law a person can be in at most one legally valid marriage at a time, Australian law does recognise that a person can be in multiple de facto relationships concurrently, and as such entitled to the legal rights extended to members of de facto relationships.[7]
In 2008, Australia's then Attorney General Robert McClelland said that "There is absolutely no way that the government will be recognising polygamist relationships. They are unlawful and they will remain as such. Under Australian law, marriage is defined as the union of a man and woman to the exclusion of all others. Polygamous marriage necessarily offends this definition."[8] (Subsequently, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 changed the legal definition from "the union of a man and a woman" to "the union of two persons".) Former High Court Judge, the Hon. Michael Kirby said in 2012, "Human relationships are complicated, but these, I would respectfully suggest, are issues for the future".[9][10]
Section 6 of the Family Law Act 1975 provides for recognition of polygamous marriages, entered in to outside Australia, for the purposes of proceedings under this Act.[11]
^"Rights charter is from 2009 BC | The Australian". Archived from the original on 12 September 2012. Retrieved 15 August 2020.
^MARRIAGE ACT 1961 (Australia) s94(1).
^Sect 23(1)(a) of the Marriage Act 1961
^Bennett, Theodore (2019). "Why the Bigamy Offence Should be Repealed". Sydney Law Review. If s 94 were to be understood this broadly, then it may even prohibit purely religious or customary marriages that are not intended by the parties to be legally recognised. However, the Australian Law Reform Commission has considered and dismissed this kind of concern. In a 1986 report, the Commission observed that '[t]he "form or ceremony of marriage" to which s 94 refers is a form or ceremony of marriage under the Act' and thus concluded that certain kinds of polygamous 'traditional Aboriginal marriage[s] would not infringe the prohibition'.[35] In a 1992 report, the Commission reiterated that the bigamy offence involves 'going through a form or ceremony of marriage which purport[s] to be a ceremony of marriage under Australian law'.
^MARRIAGE ACT 1961(Australia) s23B(1)a.
^Cite error: The named reference mac was invoked but never defined (see the help page).
^Klapdor, Michael (14 December 2016). "Polygamy and welfare". Parliament of Australia (Parliamentary Library). Retrieved 17 August 2020.
^"No recognition for polygamous marriage: A-G". www.abc.net.au. 25 June 2008.
^"Legal and Constitutional Affairs Legislation Committee". Australian Parliament House. 3 May 2012. Retrieved 6 October 2015.
^Cite error: The named reference parliamentsubmission was invoked but never defined (see the help page).
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