Getting Married Overseas

28th May 2015

 


 
What is the legal definition of marriage in Australia?

In Australia, marriage is defined in Section 5 of the Marriage Act 1961 (Cth) (“the Act”) as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
 


 
We got married overseas, do we need to register the marriage in Australia?

No.  If you were married overseas, the marriage does not need to be registered in Australia.  The foreign marriage certificate will be sufficient evidence to show that you were married.

A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, an overseas country and purporting to have been issued by an authority of the overseas country, will be for all purposes be evidence of the facts stated in the document and of the validity of the marriage to which the document relates. See Section 88G of the Act.
 


 
Will our overseas marriage be recognised in Australia?

If the marriage ceremony takes place overseas, the marriage will be recognised in Australia as a valid marriage, if:

  1. the marriage was valid under the local law at the time the marriage was solemnised (See Section 88C(1)(a)); and
  2. the marriage would have been recognised as valid under Australian law if the marriage had taken place in Australia (See Section 88D(1)).

 


 
How will we know if the marriage was valid under the local law of the overseas country where the marriage was solemnised?

To determine whether the marriage was valid under the local law at the time the marriage was solemnised, you would need to obtain expert evidence on what the formal requirements are in the country where the marriage took place.

If the marriage is considered to be not valid in the place where the marriage was solemnised, then the marriage will not be valid in Australia.

Australian citizens or permanents residents that want to marry overseas, may be required by the foreign government to obtain a Certificate of No Impediment to Marriage (“CNI”) before they can marry in the foreign country.  DFAT in Australia can issue the certificate, however, many foreign governments will only accept certificate issued by the Australian embassy or consulate within their country.
 


 
Would our overseas marriage be recognised as valid under Australian law if the marriage had taken place in Australia?

The validity of marriages is covered by section 88D of the Marriage Act 1961 (Cth).

An overseas marriage will not be valid in Australia if one or more of the following applies:-

  1. either of the parties was, at the time of the marriage, validly married to someone else;
  2. either of the parties was not of marriageable age, that is either of the parties had not yet attained 18 years of age, or satisfied the exception to this as outlined in section 12 of the Act;
  3. the parties are within a prohibited relationship as defined in section 23B of the Act, that is, the parties are related to one another by way of a brother and sister relationship, or ancestor and descendant relationship;
  4. the consent of either of the parties was not a real consent due to one of the reasons set out in subparagraph 23B of the Act because:-
    • the consent was obtained by duress of fraud;
    • a party was mistaken as to the identity of the other party as to the nature of the ceremony performed; or
    • a party was mentally incapable of understanding the nature and effect of the marriage ceremony.

Where there are proceedings under the Family Law Act 1975 (Cth), a polygamous marriage entered into outside of Australia, under section 6 of that Act shall be deemed to be a marriage.

Generally you may require expert advice to clarify your situation.
 


 
Are same-sex marriages solemnised overseas recognised as valid under Australian law?

Under section 88EA of the Marriage Act 1961 (Cth), a marriage solemnised overseas, between a man and another man, or between a woman and another woman, is not currently recognised in Australia.
 


 
I am an Australian Citizen and I married a foreigner overseas, does this guarantee their entry into Australia?

No, not automatically. It is a migration law issue. For more information on immigration to Australia, contact the Department of Immigration and Border Protection.
 


 
Can I get a divorce in Australia even if we married overseas?

Yes, an Application for Divorce can be made in Australia even if the marriage took place overseas. This process can be complicated by your circumstances. If you require advice in relation to divorce or in any other area within family law, contact DCH Legal Group at 08 9382 8488.