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Validating a marriage where the culture accepts polygamy

Posted by Benchmark Lawyers in Family Law | 0 comments

Ghazel and Anor [2016] FamCAFC (4 March 2016)

Keywords- validity of marriage – foreign marriage – potential polygamous marriage

Background

The husband and wife married in Iran in 1981 and the laws of the country allows a man to have up to 3 additional wives.

The wife made an application under s 88D of the Marriage Act to have the marriage declared as valid. It was dismissed and the wife appeals this decision.

Hogan J dismissed the application because the laws in Iran could be described as a “potentially polygamous marriage” which did not align the definition of marriage in the Marriage Act: marriage “means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

This court

The Full Court disagreed with this decision. The Full Court looked at s88D and observed at [36]:

A potentially polygamous marriage is not expressly included in the exceptions to the primary, or general, rule of recognition contained in s 88D(1). It might however be thought, as was canvassed by the Solicitor-General, that the exception contained in s 88D(2)(a), being that one of the parties to the subject marriage was at the time of the marriage married to another person, would include a potentially polygamous marriage. But as explained by the Solicitor-General, that exception (which he described as “a first in time rule”) would only preclude recognition of a second marriage not of a first potentially polygamous marriage.

The appeal was allowed and a declaration of validity of marriage as made.

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