Is bigamy or polygamy legal in Australia? – Family and Matrimonial

Polygamy in Australia is illegal. Polygamy refers to a person
having more than one marriage at the same time. It comes from
ancient Greece where the word meant “married to many” or
“often married”.

Legislation has been enacted that makes it a criminal offence to
marry more than one person. This offence is known as bigamy. As
such, it is illegal to have a second wife in Australia.

What is Polygamy?

Polygamy is defined as the practice or condition of having more
than one spouse at one time. Generally, this is having more than
one wife.

Are Polygamous Marriages Recognised in Australia?

Overseas polygamous marriages can be recognised in Australia
under Section 6 of the Marriage Act which states
that “a union in the nature of a marriage which is, or has at
any time been, polygamous, being a union entered into in a place
outside Australia, shall be deemed to be a marriage”.

Other parts of the Marriage Act set out that certain
overseas marriages are not recognised in Australia. Some of the
marriages that are not recognised in Australia include marriages
that that were the result of fraud, duress or mistaken identity,
were incestuous or which involved a person under the age of 16
years.

If you are legally married to a person in another country, you
cannot marry another spouse in Australia. This is because under the
Marriage Act 1961, an overseas marriage will be recognised
in Australia providing that the marriage:

” Must be recognised as valid under the law of the country
at the time it was entered into

” Would have been recognised as valid under Australian law if
the marriage had taken place in Australia

This means that you cannot legally be married in Australia if
you already have a spouse overseas. It also means that if you have
been involved in a polygamous relationship overseas, Australian law
will not recognise the validity of the multiple marriages, as they
would not have been considered legally valid had they occurred in
Australia.

Debate Over Polygamy in Australia

There has been debate over polygamy in Australia as a result of
the Plebiscite (Same-Sex Marriage) Bill 2016. It has also
been an issue that the family court system has had to grapple with
in recent years.

Why is Polygamy Illegal in Australia?

Polygamy is illegal in Australia because it is
seen as an antiquated concept that is incompatible with female
social, emotional and economic wellbeing. A common thread amongst
cultures and countries that practice polygamy is that it is
practised as polygyny rather than polyandry. This means that men
can have multiple wives but women cannot have more than one
husband. This is said to perpetuate a patriarchal form of gender
inequality, given marriages are often arranged in these
cultures.

It has also been argued that the payment of a ‘dowry’
between the families of the prospective spouses leads to a woman
being seen as property. This has an undesirable effect of
incentivising a family to marry off daughters and denies females
the right to marry who they want, or not get married at all.

Less common arguments include that there is the propensity for
large age gaps between husbands and wives which often leads to
early widowhood. It may also lead to the entrapment of women in
abusive relationships.

It has been said that by its nature, polygamy causes emotional
and financial isolation because it fosters neglect, jealousy,
competition and conflict between a hierarchy of wives.

Opponents also point to the sexual abuse of minors that occurs
as a result of underage polygamous marriages. If those
relationships existed in Australia, the adult would be subject to
criminal charges requiring representation from sexual assault lawyers.

A real issue is the welfare of children from polygamous
relationships. Opponents of polygamy suggest that children
experience hardship and psychological harm from isolation,
stigmatisation, having a disordered mix of adult figures and a lack
of connection to a single, dedicated family.

Those in favour of polygamy being legalised argue that
consenting adults should be able to enter marriages without the
interference of the government. It has been suggested that polygamy
allows honesty in relationships, acts as a deterrent to infidelity
and provides companionship for women. It has also been argued that
arranged marriages promote or strengthen social, economic and
political alliances and that children benefit from protection and
influence.

The practice can also provide a large support network for
children of such relationships, including by exposing them to a
broad range of adult role models. It is also suggested that there
has been a movement away from the traditional two-parent paradigm.
Further, the harms attributed to polygamous marriages are not be
inherent to polygamous relationships and that such harms are
already prohibited by law.

What is the Difference Between Polygamy and Polyamory?

Polyamory refers to a person having multiple partners, whether
they are married or not. This is different to polygamy which deals
with a person having multiple spouses.

While polygamy is illegal, it is legal to be polyamorous and
have multiple de facto relationships. Because of this, a person can
establish de facto relationships with more than one person.

If a person is in multiple de facto polyamorous, they may be entitled to the benefits and payments
typically available to monogamous couples.

Therefore, if you are engaged in de facto relationships with
multiple people, it is important to consider potential legal
ramifications. You may well as to work with a lawyer to create a
financial agreement determining what will happen in the case of a
relationship breakdown.

How Common is Polygamy in Australia?

Polygamy is uncommon in Australia. This is because it is illegal
and seen as an antithesis to western culture and values. It has
been argued that historically, polygamy has been used to oppress
females and their social, emotional and economic wellbeing.

Where is Polygamy Legal?

Polygamy is legal in a number of countries including:

  • Afghanistan

  • Algeria

  • Bahrain

  • Bangladesh

  • Bhutan

  • Brunei

  • Cameroon

  • Chad

  • Central African Republic

  • Comoros

  • Congo

  • Djibouti

  • Egypt

  • Gabon

  • The Gambia

  • India

  • Indonesia

  • Iran

  • Kenya

  • Kuwait

  • Libya

  • Maldives

  • Mauritania

  • Morocco

  • Myanmar

  • Oman

  • Pakistan

  • Qatar

  • Saudi Arabia

  • Senegal

  • Singapore

  • Somalia

  • Sri Lanka

  • Sudan

  • Tanzania

  • Togo

  • Uganda

  • United Arab Emirates

  • Yemen and Zambia

  • Palestine

  • Iraq

  • Syria (except Kurdish-controlled areas).

While it is legal to marry more than one spouse in these
nations, the majority of them allow more than one wife rather than
more than one husband.

The practise of polygamy is also common amongst members of some
religions such as Mormons in the United States and certain
Muslims.

Polygamy v Bigamy

There is a subtle but important difference between polygamy and
bigamy.

Polygamy is the practice of having more than one spouse at one
time. Bigamy is the act of going through a marriage ceremony.

Is Bigamy a Crime in Australia?

Bigamy is a crime in Australia pursuant to Section 94 of the Marriage Act 1961 which
sets out two offences:

“(1) A person who is married shall not go through a
form or ceremony of marriage with any person.”

and

“(4) A person shall not go through a form or ceremony
of marriage with a person who is married, knowing, or having
reasonable grounds to believe, that the latter person is
married.”

Bigamy Crimes Act 1900 NSW

Bigamy is also a crime in New South Wales pursuant to
Section 92 of the Crimes Act 1900
. You will be guilty of
this offence if you marry a person whilst already married to
another person.

The maximum penalty for bigamy in NSW is seven years’
imprisonment.

Section 93 of the Crimes Act also makes it an
offence in NSW to marry a person knowing that person is already
married. The maximum penalty for this offence is five years
jail.

Defences to Bigamy

There are a number of defences to bigamy that are available.
These are set out under the bigamy laws of Australia.

If a person believed their spouse was dead, then this a defence
to the crime of bigamy. Under the Marriage Act, if a
person’s spouse has been absent for a period of seven years
continuously, then this is a sufficient period to establish a
presumption of death.

The Marriage Act also confirms that bigamy is not
committed if a person “goes through a form or ceremony of
marriage with that person’s own spouse”, such as when a
couple renews their wedding vows or celebrates a second wedding.
Experienced criminal lawyers can advise you on any
defences to bigamy that may be available to you. You can contact
Astor Legal on (02) 7804 2823 or email us at
[email protected]

When prosecuting a bigamy offence, the spouse of the Accused
“is a competent and compellable witness for either the
prosecution or the defence” under section 94(6), but
a marriage “shall not be taken to have been proved if the only
evidence of the fact is the evidence of the other party to the
alleged marriage” under section 94(7). A court can
accept either an original or certified copy of a certificate as
evidence.

Punishment for Bigamy in Australia

Under Section 94 of the Marriage Act, the
punishment for bigamy in Australia is up to five years
imprisonment.

This is the maximum penalty which is reserved for the most
serious examples of this offending.

Bigamy is an indictable offence, however it can be dealt with
summarily.

Are Polygamous Marriages Recognised in Australia?

Overseas marriages are recognised in Australia but the
legislation restricts recognition of marriages conducted in
countries where polygamy is permitted.

Section 6 of the Family Law Act states:

“For the purpose of proceedings under this Act, a union in
the nature of a marriage which is, or has at any time been,
polygamous, being a union entered into in a place outside
Australia, shall be deemed to be a marriage.”

However, an overseas marriage will not be recognised if:

  • a party was aged under 16;

  • the union was non-consensual due to fraud, duress or mistaken
    identity;

  • the union was incestuous.

Preventing Bigamy

The Marriage Act contains several provisions which
operate to prevent bigamy including:

  • section 23B(1)(a) makes any second or subsequent
    concurrent marriage legally void;

  • section 42 for a marriage to be solemnised, it must
    take place before an authorised marriage celebrant, to whom
    official documents must be presented, including a written notice
    and declaration. The declaration must state the person’s
    current “conjugal status” and declare their “belief
    there is no legal impediment to the marriage”, which includes
    marriage to another person;

  • section 104 makes it an offence for a person to
    provide a notice to an authorised celebrant “if, to the
    knowledge of the person, the notice contains a false statement or
    an error or is defective”;

  • section 100 makes it an offence for a celebrant to
    solemnise a marriage if they believe there is a legal impediment to
    the marriage or that it would be void.

Bigamy Cases in Australia

There have only been a few bigamy cases in Australia. The Family
Court of Australia delivered a decision in the case of Amarnath & Kandar [2015] FamCA
1138
.

The applicant wife commenced proceedings against her then
husband. In course of the proceedings it was revealed that the wife
had married another man in the past and had not divorced him.

When she married her new husband, she completed a marriage
certificate where she stated that she was “not previously
married”.

Upon receiving this evidence, the Judge was forced to make a
decision as to whether the wife would need to be referred to the
Attorney General for prosecution. Ultimately, the Judge decided
that it was their duty to refer the wife for prosecution as the
wife’s actions were in clear breach of the Marriage
Act
.

The Family Court in 2010 delivered the decision of Hui v
Ling
[2010] FamCa 743. Ms Hiu and Mr Ling were in a
relationship in Australia. From December 2009 to January 2010, Mr
Ling returned to China where he married his former. The marriage
ceremony took place in late December 2009 in Hong Kong. Mr
Ling’s marriage in Hong Kong was recognised as being valid in
Australia.

Upon his return to Australia, Mr Ling married Ms Hiu. It was
only after the wedding that Ms Hiu became aware that Mr Ling was
already married.

At the hearing of Ms Hiu’s application for a decree of
nullity of marriage, Mr Ling conceded that he had married Ms Hiu
whilst being married to another person. Mr Ling gave evidence
voluntarily and the court issued a certificate pursuant to
Section 128 of the Evidence Act. The effect was
that Mr Ling’s evidence could not be used against him in
criminal proceedings.

Mr Ling submitted that he experienced familial and cultural
pressures to enter into an arranged marriage and that he yielded to
those pressured while in China. He then returned to Australia and
married by his own choice.

Both parties made submissions against the matter being referred
to authorities for prosecution for bigamy. The court opined that Ms
Hui’s evidence would be “sufficient to enable a prosecutor
to make sufficient enquiries…as may enable a prosecution to be
undertaken.”

Decree of Nullity

If a person is already married at the time of a marriage, the
marriage is void under Section 23B of the Marriage
Act
1961. If this occurs, a person can apply to the Federal Circuit
and Family Court of Australia
for a decree of nullity of
marriage.

If a decree of nullity is made, a judge must then decide whether
the documents from the court proceedings should be referred to the
relevant prosecuting authorities. This will generally be the
Australian Federal Police or state police. They will then decide
whether a prosecution for bigamy should occur.

Is Adultery a Crime?

Adultery is not a crime in Australia. In fact, it is legal to
have multiple de facto relationships at the one time. Section
4AA(5)(b)
of the Family Law Act 1975 sets out that “a
de facto relationship can exist even if one of the persons is
legally married to someone else or in another de facto
relationship”.

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.