Bigamy in Australia
In some countries, it is common for a man to have multiple wives. This is known as Bigamy or a Polygamy. This article will go into detail about the offence of bigamy and what the possible penalties are. It will also reference a few cases that have been heard in Australian Courts, in recent years.
Legal definition of marriage
Up until December 9, 2017, the Marriage Act defined marriage as being the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
The definition was changed with the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Marriage is now defined as the union of two people to the exclusion of all others, voluntarily entered into for life.
Legal definition of Bigamy
Section 94 of the Marriage Act 1961 (Cth) defines the offence of bigamy as a person who goes through the form or ceremony of marriage with any person when that person is already married, to another person.
It is not an offence for a person to go through with a recommitment ceremony with someone they are already married to. For example, Roger is married to Taylor and they hold a ceremony reaffirming their vows five years after their original ceremony. That would not be considered to be bigamy because they are already married to each other.
Example of bigamy
There was a case reported to the police where a New Zealand Priest and Marriage Celebrant was already married. He married a second person in New Zealand, who he subsequently divorced. He then married another woman in Australia, while he was married to his original wife.
As he had knowledge of marriage laws, and the wives didn’t know about each other, he was referred for prosecution.
He used the defence of ‘honest and reasonable mistake’ however this was rejected because of his knowledge and training as a priest and marriage celebrant. His defence was also rejected because none of his wives knew about each other.
His second wife reported him to the police and he received a six month suspended sentence and a good behaviour bond.
Is bigamy illegal in Australia?
Yes, Bigamy is made an offence in section 94 of the Marriage Act 1961 (Cth), which states that a person who is married shall not marry another person while they are still lawfully married to another person.
Section 92 of the New South Wales Crimes Act 1900 also makes bigamy an offence. It states that a person who is already married shall not marry another person while they are already married.
There are several legislative tools to reduce instances of bigamy in Australia.
Subsection 23B(1)(a) of the Marriage Act 1961 (Cth) makes any second or subsequent marriage void.
Section 42 requires that a marriage ceremony must take place before an authorised marriage celebrant such as a priest or authorised celebrant and that official documents must be presented to them. A Declaration of no legal impediment to marriage must also be filled out stating that there is no reason for the marriage not to proceed.
When a person signs the form, they must agree that:
- they are not married to another person;
- they are not in a prohibited relationship;
- they are both of marriageable age at the time of the marriage;
- they are not marrying a close relative such as a parent, grandparent, child, grandchild, brother, sister or adopted child;
- they are not marrying a descendant or ancestor;
- there are no other circumstances that would be a legal impediment to the marriage.
They must also declare that they are over the age of 18, or that they are under 18, but are eligible for marriage under Section 12 of the Marriage Act 1961 (Cth).
While multiple marriages are illegal in Australia, having multiple de facto relationships is not a criminal offence. This means that an individual can be in a de facto relationship with more than one person simultaneously, without committing an offence.
What is the punishment for bigamy in Australia?
In Australian law if you are found guilty of the offence of bigamy, the maximum penalty is imprisonment for five years.
It is also an offence to knowingly go through a form or ceremony of marriage with the knowledge, or having reasonable reason to believe that the other person is married. This offence carries a maximum penalty of five years imprisonment.
In New South Wales, the maximum penalty of marrying another person while already married is seven years imprisonment.
As bigamy is an offence in both State and Commonwealth legislation you might wonder which offence you will be charged with.
Section 94 of the Marriage Act 1961 (Cth) operates to the exclusion of any law of a State or Territory. This means that the offence of bigamy as outlined in the Marriage Act 1961 (Cth) overrides state legislation.
Strict liability applies to the physical element of circumstance according to subsection 94(1A) of the Marriage Act 1961 (Cth). Based on the Criminal Code Act 1995 (Cth), this means that you have criminal responsibility for entering into a subsequent marriage while you, or the other person is already married.
If you are charged with the offence of bigamy, the case will be heard by a Magistrate in the Local Court.
You may be liable for the maximum Commonwealth penalty of five years, unless you can successfully defend the charges.
Defence to bigamy
If you have been charged with the offence of bigamy, the courts will consider a few defences. These are:
- Mistake of fact, for example, you thought that your spouse was deceased at the time of the subsequent marriage.
- Your spouse had been absent for such time and in such circumstances that you had reasonable grounds to assume that your spouse was dead. In practice this means that they were missing, presumed dead.
- Your spouse had been absent for a period of seven years before the date of the alleged offence and you had no reason to believe that they were alive.
If the defendant can prove beyond all reasonable doubt any of these facts, then they may be found not guilty of the offence of bigamy.
Section 94(7A) allows a court to receive as evidence of the facts the original or certified copy of a certificate from Australia or a foreign country.
Decree of nullity
If you marry someone when you are already married, then the subsequent marriage will be void under Section 23 of the Marriage Act 1961 (Cth). You will still need to apply to the Family Court of Australia for a Decree of Nullity of marriage.
A marriage can also be void in cases where a person was mentally incapable of understanding the nature and the effect of the marriage ceremony, or when they could not give real consent because the marriage was obtained by duress.
A Decree of Nullity has the effect of rendering the marriage void, meaning that in the eyes of the law, you were never married in the first place.
At the time the Decree of Nullity is made, the Judge will need to decide whether there is sufficient reason to refer the matter for prosecution.
Should bigamy remain an offence in Australia?
Although the offence of bigamy has a long history in the Australian legal system, there have been questions raised about whether or not it should remain an offence.
Theodore Bennett, Assistant Professor at the University of Western Australia Law School, wrote an article arguing that the offence of bigamy should be repealed and dealt with as a fraud offence instead. He referred to the United Kingdom’s Bigamy Act 1603. He stated that the legislation was enacted because at the time the law was made, having multiple spouses would dishonour God. With people moving away from religion, he argues that there is no rationale for keeping the offence of bigamy in Australia. He referred to the Family Law Act 1975 (Cth) and stated that children of bigamous marriages are treated in the same way to children of valid marriages, meaning that a bigamist cannot avoid their responsibilities.
He also wrote that with a no-fault divorce process in Australia there is no reason for a spouse to abscond. He added that the Child Support (Assessment) Act 1989 (Cth) is better equipped to deal with matters related to child support, spousal maintenance or the division of assets.
The no-fault divorce was only introduced into Australia in the Family Law Act 1975 (Cth). The bigamy offence was created to address the risk that one spouse may simply abscond from their first spouse.
Polygamy in Australia
Although marriages that were solomnised in other countries are recognised in Australia, polygamous marriages are not recognised in Australian law. They do however exist within some Indigenous and Islamic communities.
There was a case where an Egyptian man, Mahmoud Mahdy Mahmoud Salama, had married two women. When he was filling out his visa application he could not complete it because there were not enough “wife” boxes. His visa was subsequently cancelled because he gave false information. The judge ruled that it was a jurisdictional error to assume all countries would have the same definition of marriage, or that a man from another nation, would only have one wife.
Polygamous relationships and marriages are common in Islam. Some commentators have said that Muslim men should not be allowed to have polygamy in countries where it is not legal. Another commentator said she didn’t understand why some women would tolerate their husband forcing a polygamous lifestyle onto them.
La Trobe University PhD health science candidate Linda Kirkman, says that polygamy undermines women’s autonomy. She says that religious laws promote the notion of multiple wives, but the opposite equivalent, where Muslim women, have multiple husbands is not discussed.
Monash Indigenous Centre Deputy Director John Bradley who has worked within Indigenous communities in the Northern Territory says that it is wrong to assume that women in polygamous relationships are unfairly disadvantaged. He says that we need to understand different cultures.
Is adultery a crime in Australia?
Unlike in some other countries, adultery is not a criminal offence in Australia. It may be a factor in divorce, and some people may perceive it as an immoral act, but it is not a criminal offence.
Family law case studies
Every case of Bigamy is handled differently by the Courts. We look at three different cases below.
Case 1 – Kirvan v Tomaras
In 2018, in the case of Kirvan & Tomaras  FamCa 171, Ms Kirvan applied for a Decree of Nullity of the marriage between her and Mr Tomaras.
In early 2016 she had visited another country and before arriving in Australia she married another person in a civil ceremony in 2015. When she arrived in Australia she declared the marriage to the Department of Immigration and Border Protection. Her husband arrived in March 2016 and then in April 2016 they separated.
The next year, in March 2017, she started a new relationship with Mr Tomaras and said that although she was waiting for the Divorce Order to be granted, the marriage was over. In the middle of 2017 Ms Kirvan and Mr Tomaras married. At the time of the marriage they both knew that the marriage to her then husband had not been formally dissolved. When completing their Notice of Intended Marriage they both stated that they were never validly married. They did this with the knowledge that Ms Kirvan was waiting for her divorce to be finalised.
In October 2017, a Divorce Order, for Ms Kirvan’s original marriage, was granted. The Court however considered that Ms Kirvan had undertaken a marriage ceremony knowing that she was already married.
This matter was referred to the relevant prosecuting authority to decide if the charge of Bigamy should be laid.
Case 2 – Amarnath & Kandar
The Family Court of Australia heard the case of Amarnath & Kanda  where the wife started the proceedings against her husband.
After the proceedings commenced it was found that the wife was married to another man whom she had not yet divorced. She said that she had “not previously married” on the Notice of Intended Marriage application form.
The Judge who heard the case referred the matter to the Attorney General for prosecution because they found that her actions clearly contravened the Marriage Act 1961 (Cth).
Case 3 – Hiu v Ling
In Hui v Ling  FamCa 743 the Court heard that Ms Hiu and Mr Ling had been in a relationship when he returned to China for a couple of months from December 2009 until January 2010. 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. Mr Ling admitted that he had married Ms Hiu while already married.
Ms Hiu voluntarily gave evidence in accordance with Section 128 of the Evidence Act 1995 (Cth). Both Ms Hiu and Mr Ling made submissions against the matter being referred for prosecution.
Mr Ling cited family pressure as being the reason that he entered the marriage.
As he had entered the marriage under duress, which is a valid defence, he was not charged and later returned to Australia and married by his own choice.
What to do if you have committed bigamy
If you think that you have committed a bigamy offence, you should seek legal advice from Unified Lawyers at the earliest opportunity.
Our Family lawyers can also help you file your Decree of Nullity application. If the Court grants a Decree of Nullity the effect is that the marriage is void, and your marriage was never legal.
If you find out that your spouse has committed bigamy, you would need to establish if your marriage took place first or second. If you married your spouse first then the marriage is legal. If you married your spouse when they were already legally married then you will need to file a Decree of Nullity application to void the marriage.
If you would like to discuss your situation, then Unified Lawyers can provide you with personalised legal advice and guidance on what to do next.
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