Polygamy - Illegal in Australia
Polygamy is the practice of having multiple spouses at one time. The concept of polygamy is inconsistent with the definition of marriage in Australia. Relevantly, section 5 of the Marriage Act defines marriage as:
The union of 2 people to the exclusion of all others, voluntarily entered into for life.
Consequently, no person in Australia can be validly married to more than one person at a time. In fact, under section 94 of the Marriage Act, it is a crime punishable by 5 years imprisonment to marry someone else whilst already married. Further, if any person who was lawfully married marries some other person, that marriage will be void.
Polygamous Marriages entered into Overseas
A polygamous marriage entered into in countries where polygamy is permitted may be recognised in certain circumstances in Australia.
As a general rule overseas marriages will be valid when:
- the marriage is recognised under the law of the country where the marriage took place;
- both parties to the marriage are at least 18 years old;
- the parties are not within a prohibited relationship (e.g., brother/sister, father/daughter etc);
- both parties gave free consent to the marriage; and
- neither party is married to another person.
Consequently, there is no general legal recognition of polygamous relationships entered into overseas. However, section 6 of the Family Law Act provides that:
For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.
Whilst section 6 does not validate polygamous marriages, it ensures that the Family Court has jurisdiction over polygamous marriages which were validly entered into overseas. Thus, a party to a polygamous marriage may apply to the Family Court for property orders.
The De Facto Exception
While polygamy is illegal, there is no restriction on entering into a de facto relationship whilst married, or entering into more than one de facto relationship at the same time.
For example, section 4AA of the Family Law Act, in defining the definition of a de facto relationship for the purposes of the Act, expressly provides that:
(5)(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
However, where a person is in multiple alleged de facto relationships or is married and in an alleged de facto relationship, it may be more difficult to establish that in all the circumstances a de facto relationship exists.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.