Polygamy in Australia
In Australia, it is illegal to enter into multiple marriages, or to be married to more than one person at a time. Being married to multiple people at the same time is known as polygamy. To be in a polygamous marriage you need to commit the act of Bigamy, which is a criminal offence in Australia.
This article provides information about when multiple marriages might be recognised, the key differences between polygamy, polygyny, polyandry, and bigamy.
What is polygamy?
Polygamy is when a person has more than one spouse at the same time. It is not legal in Australia because it requires the act of Bigamy.
What does the law say about polygamy?
Australian legislation does not specifically reference polygamy.
In Australia, marriage is defined as the union of two people, to the exclusion of all others, voluntarily entered into for life.
Until the Marriage (Definition and Religious Freedoms) Act 2017 (Cth) was passed, it was defined as the union of a man and a woman, to the exclusion of all others, voluntarily entered into for life.
The Relationships Register Act 2010 (NSW) states that you can only be in a de facto relationship with one person at any given time. It is illegal to register multiple relationships at one time. If you have previously registered a relationship, you must revoke that registration before you can register a new relationship.
The effect of this is that if you are in a relationship with two people, only the first spouse is recognised for social security purposes. If one, or both relationships end, they will not have any right to claim a property settlement.
What about children?
The Child Support (Registration and Collection Act 1988 (Cth) says that you are responsible for any children that you have. If you have children from multiple relationships then you are responsible for all of them.
Opinions on polygamy in Australia
Opponents of polygamous relationships say that polygamy is harmful to women, because it is normally practiced as polygyny rather than polyandry, so it undermines women’s rights and creates gender inequality. They also say that it leads to women being in abusive unions. Some groups say that by its very nature it creates jealousy and isolation for the wives in a polygamous marriage. Another concern is that polygamists marry girls before the age of consent, or conduct fraud to enter a second, or subsequent marriage.
Proponents of polygamy argue that it creates honesty in relationships and reduces the risk of infidelity. They also say it gives women companionship that they otherwise wouldn’t have.
President of the Australian Federal of Islamic Councils, Keysar Trad, has added to the debate and has sought a second wife for several decades. His wife, supports his quest, saying that she would rather he have a polygamous setup than an affair.
When are polygamous marriages recognised?
Generally, polygamous marriages are not legally recognised in Australian law at all.
Before same-sex marriage was legalised in Australia, Section 6 of the Family Law Act 1975 (Cth) stated that polygamous marriages that happened overseas would be recognised.
That has not been the case since the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) because marriage is now defined as a union of two people, to the exclusion of all others, voluntarily entered into for life. If you go through a marriage ceremony with more than one person, only the first marriage is valid.
This means that polygamous marriages will not be recognised in Australia. Typically, only the first legal marriage entered into, will be legally recognised in Australia.
What about potentially polygamous marriages?
A potentially polygamous marriage is a marriage that might be recognised in Australia, assuming that there are no exceptions under Section 88C of the Marriage Act 1961 (Cth).
The Case of Ghazel & Ghazel
In 1981, Mr. Ghazel married Mrs. Ghazel in Iran. Under Iranian legislation, a man is allowed to be married to more than one woman. In 1984, the couple visited the Iranian Embassy in the United Kingdom to register their Iranian marriage.
They subsequently moved to Australia in 2005. They filed for divorce in 2008, however, their divorce application was only for the marriage that occurred in England in 1981.
After their divorce was finalised, Mr. Gazel went back to Iran where he married another woman in 2011. Mrs. Ghazel applied to the Family Court of Australia for an Order to recognise her Iranian marriage.
The Marriage Act 1961 (Cth) Part VA says that any marriage that occurs in a foreign country, where it is recognised as a valid marriage at the time that it occurs, will be a marriage that is valid in Australia unless certain exceptions apply.
Section 88D(2)(a) deals with one such exception.
In the original hearing, Mrs. Ghazel’s application was dismissed because the foreign marriage could not be recognised under Part VA of the Marriage Act 1961 (Cth) because it did not meet the definition of marriage under the Act.
The Full Court reversed the original decision after Mrs. Ghazel appealed the original decision. The court ruled that the Iranian marriage between Mr. and Mrs. Ghazel was legally valid in Australia.
The Attorney General made a submission that there was a distinction between a polygamous marriage and a potentially polygamous marriage. The Full Court recognised that a potentially polygamous marriage would have been recognised under Part VA of the Marriage Act 1961 (Cth) before 2004 when the Act did not define marriage.
Effectively, in this case, the ruling was made based on retrospective legislation.
The Full Court also accepted that under Section 88D(2)(a), they could not deny validity because neither of the parties was married to another person at the time of their marriage.
This case highlights that a potentially polygamous marriage may be considered valid unless it meets one of the exceptions detailed in the Marriage Act 1961 (Cth).
What are the differences between polygamy, polygyny, polyandry, and Bigamy?
Polygamy is when you have multiple spouses at any one point in time.
Polygyny is a situation where a man has multiple wives.
Polyandry is where a wife has more than one husband.
To be in a polygamous marriage, you need to commit Bigamy, which is an offence in Australia. Bigamy is when someone marries a person while already married to another person.
Defence to Bigamy
If you think that you have committed the criminal offence of Bigamy, you may be found not guilty of the charge if you can prove:
• a mistake of fact occurred. You may have thought that your spouse had passed away at the time of your second, or subsequent marriage ceremony.
• Your spouse had disappeared, and you had reasonable reason to believe that they were deceased.
• your spouse had been missing for at least seven years and you did not have any reason to believe they were alive.
The courts will accept an original, or certified copy of a marriage certificate from Australia, or another jurisdiction, as evidence, during a hearing, if you are defending a Bigamy charge.
Is polygamy legal in Australia?
Polygamy is not recognised in Australia, because to be in a polygamous marriage, you need to commit the act of Bigamy.
Polygamy, by definition, is inconsistent with the definition of marriage according to the Marriage Act 1961 (Cth). Marriage is the union of two people, voluntarily entered into, for life.
You will only be charged with the offence of Bigamy if you attempt to solemnise a second marriage in Australia.
Are overseas marriages recognised in Australia?
In most cases, overseas marriages will be recognised in Australia.
There are certain circumstances where an overseas marriage will not be valid. These are laid out in Section 88D of the Marriage Act 1961 (Cth).
I am married overseas, can I marry again in Australia?
If you were married overseas, then generally, your marriage will be recognised in Australia, so you will not need to marry your spouse again in Australia. If you wish to reaffirm your commitment to your spouse, you can do so, but it will not result in the issuing of a new marriage certificate.
What is the difference between polygamy and polyamory?
Polygamy is the act of being married to more than one person at the same time.
Polyamory is the practice of being in multiple intimate relationships, with the consent of both parties.
What is a polygyny family?
Polygyny is a marriage where a husband has multiple wives. Polygyny is not legal in Australia. Other countries where it is banned include India, China, United Kingdom, the United States, and Canada,
It is more common in Africa than in any other nation. One of the key reasons is the male-female gender ratio.
Polygamy in the United States
The American Church of Latter-day Saints attracted controversy in 1852 when they said that plural marriages were part of their doctrine.
Polygamy is illegal in most states in the United States. Utah recently downgraded polygamy from a third-degree felony to a minor offence on 13 May 2020. It is very difficult for polygamists to be prosecuted because they generally only apply for marriage licenses for their first marriage. Other marriages are conducted in secret ceremonies.
More frequently asked questions about Polygamy
We have answered some more commonly asked questions about the legalities of polygamy in Australia.
How many wives can you have in Australia?
One. In Australia, males or females cannot have a second wife. They can only be married to one person at a time.
Do Australian Aborigines practice polygamy?
Yes. Polygamy is common in some Indigenous Australian communities, particularly in the Northern Territory.
Is polygamy legal in NSW?
No, because to enter into a polygamous marriage you need to commit the act of Bigamy. Bigamy is a criminal offence in NSW.
Polygamy around the world
Some countries around the world permit polygamy. Polygyny is particularly common amongst Muslims, where some Muslim men have up to four wives.
Polygamy is allowed in many countries around the world, and in certain religions.
Some countries, which have a high Islamic population, allow polygyny, however, they require that the first wife consents to her husband having multiple wives.
Mormons in the United States also have polygamous marriages.
New Zealand does not allow the performance of polygamous marriages, however, they will be recognised if they happen in a country that allows polygamy.
Is adultery legal in Australia?
Unlike some other nations, which have laws prohibiting adultery or unlawful cohabitation, Australia does not have such laws and so technically, adultery is legal in Australia.
If you are in a polygamous marriage and want some legal advice on whether or not your marriage is valid, get in touch with our legal team. When you speak to us, we will find out what your circumstances are, and will provide tailored advice so that you can make decisions that will help you move forward. Our family lawyers have comprehensive knowledge of Australian legislation and can point you in the right direction.
We are available on 1300 667 461.