Recognition of overseas marriage
The rules that govern whether or not an overseas marriage is valid under Australian law are
found in the Marriage Act 1961. If you were married overseas it will usually
be recognised as valid in Australia if at the time you married:
your marriage was recognised as valid under the law of the country in which you
married, and it would have been recognised as a valid
marriage under Australian law if you had married in Australia.
If you married overseas there is no requirement to register the marriage in Australia. The
Marriage Act 1961 states that an original or certified copy of a marriage certificate
or record of marriage that is issued by the competent authority in a foreign country is
proof of that overseas marriage and of the validity of the marriage. A competent authority
is one that is set out in the Marriage Regulations 1963 or any other authority that is competent
under the law of the country where the marriage took place.
What makes an overseas marriage invalid? The Marriage Act 1961 sets out the reasons
that would make an overseas marriage invalid in Australia. These reasons include:
at the time of the marriage one of the parties was validly married to another person
one of the parties was not of marriageable age in Australia
the parties are too closely related to marry. This means one is an ancestor of the
other, a descendent of the other or they are brother or sister.
consent to the marriage by either of the parties was not real consent because:
it was obtained by duress or fraud they were mistaken as to the identity of
the other person they did not understand the nature of the
ceremony being performed, or they were mentally incapable of understanding
the nature and effect of a marriage ceremony. Overseas same sex marriages
It may be legal to marry someone of the same sex in some overseas countries. However, under
the Australian Marriage Act 1961, a marriage is the union of a man and a woman to the exclusion
of all others voluntarily entered into for life.
A marriage in a foreign country between a man and another man or a woman and another
woman is not recognised as a valid marriage in Australia. It could, however, be evidence
of a de facto relationship for the purposes of Commonwealth, State and Territory laws.
Currently, in New South Wales, Tasmania and Queensland, couples can have their relationship
recognised by having it recorded in their state Relationships Register.
Australians marrying overseas If an Australian citizen marries overseas,
it will be recognised in Australia as a valid marriage providing it was valid under the
local law at the time it took place and would have been recognised as valid under Australian
law if it took place in Australia. If you choose to marry overseas there may
be additional legal requirements of which you must be aware to make sure that you are
able to marry there. To find out the specific requirements for a valid overseas marriage
in the country in which want to marry, you need to contact the embassy, consulate or
high commission of that country. Some foreign governments require you to have
a Certificate of No Impediment to Marriage issued from a government authority. The Department
of Foreign Affairs and Trade (DFAT) in Australia can issue these, but some governments will
only accept them if they are issued by the Australian embassy in their country.
Some countries may require you to get a Single Status Certificate or No Record Result. These
can be obtained from your state or territory Registry of Births, Deaths and Marriages.
You may also need your original birth certificate and passport, and your divorce papers or the
death certificate of your former spouse if you are divorced or widowed.
Marriage and immigration Being married to an Australian citizen does
not automatically guarantee that a citizen of another country can move to Australia and
live here legally. A valid visa is still required. The Department of Immigration and Border Protection
can advise you as to what is required for immigration to Australia.
What to do next If you or someone you know is concerned about
the validity of an overseas marriage, or you have concerns about citizenship following
an overseas marriage, it is important to obtain legal advice as soon as possible.
Go To Court Lawyers operate a Legal Hotline on 1300 636 846 where you can talk directly
to a lawyer from 24 hours, 7 days a week. Your call will be treated with the strictest
confidentiality and without judgement. The lawyer will assess your matter and recommend
a course of action. Should you need a Court lawyer, even at very
short notice, the Legal Hotline staff will be able to arrange one for you. You can also
request a call back via the website www.gotocourt.com.au and a lawyer will call you back to assess
your matter.
