Legally Married…. Or Not? Considerations for migrant marriage


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Legally Married…. Or Not? Considerations for migrant marriage

Migrants to Australia are now increasingly arriving here from non-English speaking countries. This has led to new challenges for marriage celebrants who are finding themselves working with couples where one or both parties have had previous relationships, or even marriages, overseas.

The role of marriage celebrants in marriage ceremonies was examined in two recent decisions handed down by the Family Court of Australia. In both cases, the marriages were found to be null and void. For legal purposes, it was as if the marriages never took place. The issues arose due to the parties’ lack of English proficiency and potentially, the marriage celebrant not understanding the requirements of the Marriage Act.


Hill & Spiteri case example

A decision Hill & Spiteri [2016] FamCA 1136, handed down by Justice Forrest in October 2016, demonstrated the need to understand the background history of parties to a potential marriage in order to ensure their marriage is valid. In this case, it was revealed that at the time of the ceremony, the wife was already married to another man.

The Applicant, a Mr Hill sought a declaration of nullity or an annulment in other words. A marriage ceremony had taken place in April 2014 between Mr Hill and the Respondent, Ms Spiteri.

Ms Spiteri had travelled to Australia from overseas a few years prior to the marriage ceremony and had met Mr Hill. They commenced a de facto relationship. When Ms Spiteri obtained a visa on the basis that she was in a de facto relationship with Mr Hill, she was not required to show that she was single, divorced, or had never been married when she had entered the relationship. After living together for a time, Mr Hill and Ms Spiteri decided that they wished to marry to formalise their relationship.

The parties located a marriage celebrant and provided her with a copy of Mrs Spiteri’s marriage certificate from her country of origin. It set out the details for her marriage to Mr Spiteri in 1984. The parties knew that Ms Spiteri had been married in the past. As we will go on to see, the issue arose when it came to the supposed end to that marriage.

The parties also provided the marriage celebrant with a document entitled “an affidavit of abandonment” sworn by Mrs Spiteri in 2012. A similar affidavit was provided from Mr Spiteri. The parties told the marriage celebrant that the affidavits meant that Mrs Spiteri and Mr Spiteri were “deemed to have never been married” and that her prior marriage was not recognised in Australia. Accordingly, the parties explained that they were free to marry.

The Court found that these statements were wrong. The earlier marriage was lawful as evidenced by the marriage certificate. The marriage was never formally dissolved overseas or in Australia. Mrs Spiteri could not lawfully marry Mr Hill in 2014.

The Court made an order declaring that the marriage solemnised in 2014 between Mr Hill and Ms Spiteri was absolutely null and void.


Breust & Devine case example

A second decision of the Family Court of Australia dealing with the validity of a marriage ceremony was made by Justice Thornton of the Melbourne registry in October 2016. The decision of Breust & Devine [2016] FamCA 892 dealt with a marriage ceremony where the Applicant believed she was participating in a “promise night”. Further, she lacked English proficiency and the relevant documents and statements of the marriage celebrant were not interpreted for her.

An order was made that the marriage was void. A decree of nullity was made because the consent of the Applicant was not a real consent since she was mistaken as to the nature of the ceremony performed.

Section 23B(1)(d)(ii) of the Marriage Act states that a marriage is void where the consent of either of the parties is not a real consent because that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed.

The Applicant gave evidence that she was “unable to read, write or speak English” and was assisted in the preparation of her affidavit by her solicitor and an interpreter. She deposed that after she met the Respondent and became “closer”, they agreed to undergo a “promise night” in accordance with their cultural customs.

The Applicant deposed that the Respondent informed her that he was in Australia on a temporary visa and was unable to work. He explained that if they registered the relationship he could work. The Applicant stated that for the ceremony she was not dressed appropriately, could not understand what was being said, and was under the impression that she and the Respondent were simply registering their relationship. After 5 to 10 minutes she was given a paper to sign, and then the Respondent dropped her back to her parents’ home.

She deposed to them having gone out as “boyfriend/girlfriend” but never being physical beyond kissing on the lips. She deposed that the parties never discussed themselves as being married and actually discussed plans to marry in the future. The parties ended their relationship in April 2015. The Applicant spoke to the celebrant and was informed that she was in fact already married.

The Court found that the Applicant was mistaken as to the nature of the ceremony in which she had participated and that she thought it was a “promise night” and only done to register the relationship. She was mistaken as to the nature of the ceremony and the content of the documents she signed due to her lack of English proficiency. She did not give real consent to the marriage and the marriage was found to be void and a decree of nullity of the marriage was made.


Common misconceptions regarding overseas marriages

A common misconception of Family Law clients who were married overseas is that as the marriage was not registered or performed in Australia, it is therefore not “valid” in Australia, or that they cannot apply for a divorce in Australia. Most marriages validly made overseas are recognised in Australia – although not currently same-sex marriages. If a marriage ceremony takes place overseas, the marriage will be recognised in Australia as valid, if it was valid under the local law at the time it was made.

Parties can obtain a divorce in Australia even if married overseas if:

  • Either the husband or the wife resides in Australia; and
  • The validity of the marriage can be proved by a marriage certificate.


What’s important for Marriage Celebrants?

The takeaway point for marriage celebrants, following on from the cases discussed above, is that when dealing with couples in which one or both parties have come to Australia from overseas, make sure that:

  1. Everyone understands the importance and effect of the marriage ceremony to be conducted; and
  2. That proper enquiry is made to ensure that any past marriages entered into by either party overseas have been correctly terminated.

Evans & Company Family Lawyers are able to assist on any issues concerning divorce and nullity.