By -

Key decisions

  • Ghazel and Anor [2016] FamCAFC 31
  • Nevill [2016] FamCAFC 41
  • Martin & Wilson [2016] FCCA 235

Divorce – validity of foreign marriage under Part VA of the Marriage Act

In Ghazel and Anor [2016] FamCAFC 31 (4 March 2016) the Full Court (Finn, May & Austin JJ) heard the wife’s appeal against Hogan J’s dismissal of her application under section 88D of the Marriage Act 1961 (Cth) (‘MA’) for a declaration of validity of the parties’ marriage which was valid under the law of Iran.

The wife (who was born in England) married the husband in Iran in 1981. Hogan J said that the law of that country ‘permitted a husband subject to certain conditions to take up to three additional wives. Thus, the marriage of the parties in Iran can be described … as a “potentially polygamous marriage”’ (at [2]). Hogan J had held that the definition of marriage in s 5(1) MA as a union ‘to the exclusion of all others voluntarily entered into for life’ meant that under Part VA (s 88B(4) MA) a marriage solemnised in a foreign country ‘must be monogamous for it to be recognised in Australia’ (at [10]).

The Full Court disagreed, saying (at [23]-[26]) that under s 88D MA a foreign marriage recognised as valid under the relevant foreign law shall be recognised in Australia as valid, except where at the time of the marriage a party was married to another person, was not of marriageable age or was within a prohibited relationship, or the consent of either party was not real.

The Full Court observed that ‘[a] potentially polygamous marriage is not expressly included in the exceptions to the … rule of recognition … in s 88D(1)’ and noted the explanation of the Solicitor-General (the intervener) that the exception as to a party at the time of the marriage being married to another person ‘was “a first in time rule” [which] would only preclude recognition of a second marriage not of a first potentially polygamous marriage’ (at [36]).

The appeal was allowed and a declaration made that the marriage was valid.

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more