Bigamy is a type of relationship that allows a person to have multiple partners legally. But is it legal in Australia? No. According to Section 94B of the Family Law Act 1975, having multiple partners at the same time in Australia is illegal and a criminal offence.
A married person who marries multiple partners at the same time may be subject to imprisonment for 5 years. People who married multiple wives/husbands may only defend themselves if they:
- Can prove that their wife/husband was dead when they remarried
- Presumed that their wife/husband was absent for at least 7 years preceding the remarriage
- Can prove that the marriage ceremony was invalid
NSW Crimes Act
Are there other relevant Acts that state that marrying multiple partners at the same time is illegal in Australia? Section 92 of the New South Wales Crimes act 1900 also declares that bigamy is an offence. This Act states that a person who is already committed to a marriage shall not marry any other person while they are married.
Marriage Act 1961
The Marriage Act 1961 also has provisions regarding marriages in Australia. Under civil law marriages, that the Marriage Act 1961 governs, any marriage in addition to an already existing one is invalid. However, the Marriage Act 1961 do not have provisions to criminalise such circumstances. Read on to know more about bigamy.
How Can a Decree of Nullity Help in Family Law Matters?
A person may apply for a decree of nullity if he/she wants to void his/her marriage. A decree of nullity is necessary for a marriage annulment under Section 51 of the Family Law Act of 1975. The annulment procedure is very different from the divorce procedure because it voids a marriage from the beginning. But, what are reasonable grounds for an annulment? The Federal Circuit and Family Court of Australia will void a marriage if:
- Either party was already married at the time of the marriage
- The parties are in a relationship with their direct relatives or siblings (incest). Section 78A of the Crimes Act subjects a person committing incest to a maximum penalty of eight years of imprisonment.
- The form or ceremony of marriage is invalid. For instance, the marriage celebrant or officiant was not licensed in the subsequent marriage.
- Either party was underage at the time of their marriage.
How to Apply for a Decree of Nullity?
People who want to apply for a decree of nullity must submit an Initiating Application Form. Law Access NSW sets out a step-by-step guide for filing an annulment application. They also have a sample form for people who want to file an annulment. However, people should seek legal advice before filing a legally enforceable annulment form. This form should be accompanied by the following documents:
- A copy of the original marriage licence
- An affidavit outlining the specifics of the wedding
- Grounds for annulment
How To Avoid Committing a Bigamy Offence
Married people can opt for divorce if they want to remarry because of valid or personal reasons. Not only does a divorce legally end a marriage, but it also allows a person to freely remarry without legal consequences. We have published a blog about the steps to getting a divorce. Married partners can apply for a divorce using two types of divorce applications. These are:
- Sole Application - Where one person applies for divorce. A person may also use this application if his/her partner doesn't want a divorce. Once approved, the applicant should serve the application to his/her spouse.
- Joint Application - Married couples who mutually agree to get a divorce may use this application. A family court hearing is needed if there are children in the marriage in order to draft parenting plans. Additionally, a court hearing is needed if the judge needs to make decisions about property settlement or spousal maintenance proceedings.
Property settlement is a legal process that allows married couples to divide their finances and assets. On the other hand, spousal maintenance is financial aid given to partners who are mentally or physically disabled and/or unable to secure employment. The higher-earning partner is responsible for providing spousal maintenance. Indeed, the process may be tedious and stressful, but divorce is the best approach to avoid committing a bigamy offence.
Case Example #1
In the case of Kirvan & Tomaras [2018], Ms Kirvan applied for a decree of nullity in order to void her marriage with Mr Tomaras. Ms Kirvan came back to Australia in early 2016 after she travelled to another country to have a civil wedding with Mr D. She disclosed the marriage to the Department of Immigration and Border Protection (DIBP) when she first arrived in Australia.
Mr D arrived in Australia in March 2016. Ms Kirvan separated from her husband due to an irreconcilable relationship breakdown. She also disclosed the separation to the DIBP. Ms Kirvan met Mr Tomaras in mid-2017 and soon commenced a relationship and lived together.
Mr Tomaras knew that Ms Kirvan's marriage with Mr D hadn't formally ended. They both claimed that they had never been legally married when they filled out their Notice of Intended Marriage. They did this knowing that Ms Kirvan was awaiting the conclusion of her divorce.
A divorce order for Ms Kirvan's first marriage was granted in October 2017. However, the Court believed that Ms Kirvan had committed bigamy while being aware that she was already married. Accordingly, the court referred the court documents to the relevant prosecuting authority to consider laying a charge of bigamy. As a result, the court declared Ms Kirvan and Mr Tomaras' marriage null and void.
Case Example #2
In the case of Hiu v. Ling [2010], the court learned that Ms. Hiu and Mr. Ling had been dating between December 2009 and January 2010 when he returned to China. While he was in China his parents, and his ex-girlfriend's parents arranged for the children to marry. They were married at a ceremony in late December 2009 in Hong Kong.
Mr Ling's marriage in Hong Kong was legally recognised in Australia. After the wedding Ms Hiu found out that Mr Ling was already married. She subsequently applied for a Decree of Nullity of marriage. Ms. Hiu and Mr. Ling both submitted arguments opposed to the case being referred for prosecution.
Mr. Ling stated that he entered the marriage because of family pressure. He wasn't charged since he had entered the marriage under duress, which is a legitimate defence.
How Can Family Lawyers Help With Marriage Matters?
Indeed, bigamy is a punishable offence in Australia even if the person claimed that it was an honest and reasonable mistake. Not only does this emotionally affect the person who isn't aware of his/her partner remarrying, but also complicates property settlement and spousal maintenance proceedings. Furthermore, married people should not remarry other partners immediately if they have parenting arrangements and property settlement matters to attend to.
Spouses who knew that their partners remarried without their knowledge or consent may reach out to JB Solicitors. We are a family law firm that specialises in parenting and marriage matters in Australia. Our family lawyers can aid in filing a decree of nullity if couples want to void their marriage. This way, parties can remarry without worrying about breaching state laws and regulations and making an alleged offence to their marriage. Our team can also:
- Aid in property settlement procedures and ensure that each divorcing couple receives a just and equitable amount from their assets and finances.
- Determine the best parenting arrangement for children that adheres to the child's best interests
- Identify if spousal maintenance is needed for lower-earning partners
- Any other family law matters that may require our legal advice and representation
- Provide mediation and arbitration services for disputed couples who want legally binding out-of-court arrangements
- Fixed fees for family law matters and other services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.