Family law: June 2016

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.