Potential Polygamous Marriage
In Australia a marriage must be between a man and a woman ‘to the exclusion of all others”. So what happens when cultural immigrants have multiple wives? The court recently considered just a case.
The parties married in Iran in 1981. The law in Iran permitted the husband, subject to certain conditions the ability to take 3 additional wives.
The parties moved to England later that year and married in an English registry office. The certificate did not reflect the earlier marriage in Iran. The parties did however eventually register their Iranian marriage through the Iranian Embassy in the United Kingdom. The parties immigrated to Australia in the 2000’s, but ultimately separated. In 2008 they filed a joint application for divorce, referring to the marriage in England only. The divorce was granted.
In 2011 the husband remarried another woman in Iran.
Proceedings were commenced by the wife in Iran to determine how the husband was able to marry in Iran without the wife’s consent. The Iran Court determined that the Iran marriage was still in existence as there was no valid divorce. The husband therefore had entered into a second marriage.
The wife filed proceedings in the Family Court in Australia seeking that the first marriage in Iran be declared valid under the Marriage Act. The husband opposed the Application.
The Judge found that under the Marriage Act, for a foreign marriage to be recognised, it must be monogamous by being to the ‘exclusion of all others’, the Iran marriage could potentially be polygamous. The Judge found that the Iranian marriage therefore could not be valid in Australia. The wife’s application was dismissed.
The Wife appealed.
The Appeal Court Found
The Appeal Court found that a marriage which is potentially polygamous at the outset, is still a marriage “to the exclusion of all others” until it becomes polygamous.
A potential polygamous marriage therefore is a marriage that could be recognised in Australia, on the basis that no other exceptions under the Marriage Act would apply (for example the marriage was not between a man and a woman).
The Court Ordered
The Iranian marriage from 1981 was declared valid.