AUSTRALIA
Marriage Act 1961
Part 1—Preliminary
5 Interpretation
(1) In this Act, unless the contrary intention appears:
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marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
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Part VA—Recognition of foreign marriages
88A Object of Part
The object of this Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978.
88B Interpretation
(1) In this Part, unless the contrary intention appears:
Australia includes the external Territories.
local law, in relation to a marriage solemnized in a foreign country, means the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnized.
(2) A marriage shall be taken, for the purposes of this Part, to have been solemnized in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country if the marriage was solemnized in the first mentioned foreign country by or in the presence of a person who was recognized by the government of that country as a diplomatic or consular representative of the other foreign country.
(3) In this Part, a reference to a marriage includes a reference to a purported marriage that is void or voidable but does not include a reference to a marriage solemnized under Part V.
(4) To avoid doubt, in this Part (including section 88E) marriage has the meaning given by subsection 5(1).
88C Application of Part
(1) This Part applies to and in relation to every marriage solemnized, whether before or after the commencement of this Part, in a foreign country where:
(a) under the local law, the marriage was, at the time when it was solemnized, recognized as valid; or
(b) if the marriage was solemnized by or in the presence of a diplomatic or consular officer of another foreign country:
(i) under the law of that other foreign country, the marriage was, at the time when it was solemnized, recognized as valid; and
(ii) at the time when it was solemnized, the solemnization of the marriage was not prohibited by the local law.
(2) Where a marriage (not being a marriage referred to in subsection (1)) that was solemnized, whether before or after the commencement of this Part, in a foreign country:
(a) is, at any time in relation to which the validity of the marriage falls to be determined, recognized as valid under the local law; or
(b) if the marriage was solemnized by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnized, the solemnization of the marriage was not prohibited by the local law—is, at any time in relation to which the validity of the marriage falls to be determined, recognized as valid under the law of that other foreign country;
this Part applies to and in relation to the marriage from and including that time.
88D Validity of marriages
(1) Subject to this section, a marriage to which this Part applies shall be recognized in Australia as valid.
(2) A marriage to which this Part applies shall not be recognized as valid in accordance with subsection (1) if:
(a) either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last mentioned marriage was, at that time, recognized in Australia as valid;
(b) where one of the parties was, at the time of the marriage, domiciled in Australia—either of the parties was not of marriageable age within the meaning of Part II;
(c) the parties are within a prohibited relationship within the meaning of section 23B; or
(d) the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).
(3) Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognized as valid in accordance with subsection (1) at any time while either party is under the age of 16 years.
(4) A marriage solemnized in a foreign country, being a marriage to which this Part applies, shall not be recognized as valid in accordance with subsection (1) at any time while the marriage is voidable:
(a) except in a case to which paragraph (b) applies—under the local law; or
(b) if the marriage was solemnized in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country—under the law of that other foreign country.
(5) Notwithstanding any other provision of this Part, where:
(a) a marriage (in this subsection referred to as the initial marriage) has, whether before or after the commencement of this Part, been solemnized in a foreign country;
(b) at the time of the solemnization of the initial marriage, that marriage was not recognized in Australia as valid;
(c) after the solemnization of the initial marriage, and whether before or after the commencement of this Part, either party to that marriage entered into another marriage (in this subsection referred to as the subsequent marriage); and
(d) at the time when the subsequent marriage was solemnized:
(i) the subsequent marriage was recognized in Australia as valid; and
(ii) the initial marriage was not recognized in Australia as valid;
the initial marriage shall not be recognized at any time in Australia as valid.
88E Validity of certain marriages not affected by this Part
(1) Subject to subsection (2), a marriage solemnized in a foreign country that would be recognized as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognized as valid shall be recognized in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.
(2) Notwithstanding subsection (1), a marriage of a person domiciled in Australia, being a marriage solemnized in a foreign country, shall not be recognized in Australia as valid if, at the time of the marriage, either party to the marriage was not of marriageable age within the meaning of Part II.
(3) Where a marriage solemnized in a foreign country is not required by virtue of this Part to be recognized in Australia as valid, this Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that provides, expressly or impliedly, for such a marriage to be recognized as a valid marriage for the purposes of the law in which the provision is included.
(4) This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.
88F Incidental determination of recognition of certain foreign marriages
Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question.
88G Evidence
(1) A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnized in, or under the law of, a foreign country and purporting to have been issued by:
(a) in the case of a marriage alleged to have been solemnized in a foreign country—an authority of that country or of that part of the country in which the marriage was allegedly solemnized; or
(b) in the case of a marriage alleged to have been solemnized under the law of a foreign country—an authority of that country;
is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
(2) Subsection (1) does not apply to or in relation to a document if it is proved that the authority of the foreign country or of the part of a foreign country by which the document purports to have been issued was not, at the time of issue, a competent authority.
(3) In subsection (2), competent authority means:
(a) in relation to a foreign country:
(i) any authority that is prescribed in relation to that country by regulations made for the purposes of this paragraph; or
(ii) any other authority that is competent, under the law in force in that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnized in, or under the law of, that country; and
(b) in relation to a part of a foreign country:
(i) any authority that is prescribed in relation to that part of that country by regulations made for the purposes of this paragraph; or
(ii) any other authority that is competent, under the law in force in that part of that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnized in that part of that country.
Source: Act No. 12 of 1961.