Polygamy is the practice of having more than one spouse at the same time. Countries such as Afghanistan, Egypt, India, Indonesia, the Maldives, and the United Arab Emirates permit a person to practice polygamy. However, even if a polygamous marriage is conducted in a country where the practice is legal, these marriages are not recognised in Australia. In fact, in Australia, the act of marrying someone while already married is a criminal offence known as bigamy.
Legal marriage in Australia
In Australia, the legal definition of marriage (which was updated in 2017 to recognise same-sex marriage), is the voluntary union of two individuals to the exclusion of all others, entered into for life. It is an offence under section 94(1) of the Marriage Act 1961 for a person to get married when they are already married to someone else. The maximum penalty for this offence is five years imprisonment.
There are other offences related to bigamy that carry penalties in Australia. For instance, when a person marries they must sign a notice stating that there is no legal impediment to the marriage taking place. Under section 104 of the Marriage Act, it is prohibited to give a notice to an authorised celebrant if the notice contains a false statement. The maximum penalty for this offence is six months’ imprisonment.
Defences to bigamy
The only defence to a charge of bigamy is “mistake of fact”. This defence only applies in cases where the accused had a genuine (although mistaken) belief that he or she was free to marry. For instance, the person may have believed in good faith that their first spouse was dead, or that they were granted a legal divorce from their first spouse. In these cases, the bigamous marriage is still illigitimate, but the defendant will avoid penalties for the criminal offence of bigamy.
Remedies for bigamy
When someone discovers that their marriage is bigamous, then it is natural to conclude that since the marriage was never legal, it is automatically void and no further action is necessary. While this is true in the sense that the marriage was never legally valid, someone who has obtained an official certificate for a bigamous marriage still needs to go through the formal process to obtain a Decree of Nullity. The party can seek an annulment with the legal basis that that marriage was bigamous. It should be noted that seeking an annulment is only possible for the second, invalid marriage, as the first marriage is still valid and can only be dissolved through a legal divorce decree (or the death of one of the parties to the marriage).
Polygamous relationships
It is important to make a distinction between the legal prohibition against bigamy and the practice of polyamorous relationships. In Australia, there is no law prohibiting (or even regulating) the number of partners that can enter into de facto relationships with a person.
The parties to a polyamorous relationship may even have many of the same rights as a married couple under Australian family law and other inheritance laws. For instance, members of a polyamorous relationship may be recognised as de facto partners and are therefore eligible to receive property settlements if the relationship ends. Similarly, polyamorous couples may be able to make claims against the deceased estate of a partner.
Case study
Convictions for bigamy are rare but not unheard of in Australia. In 2023, the Australian Federal Police charged a 48-year-old Western Australian man with one count of bigamy, and two other charges related to signing a Notice of Intention of Marriage in which he declared he had never before been legally married. The man married his first wife in Canada in 2015, separating three years later, and married his second wife in Broome in 2020 without telling her about his first marriage. The crime was only uncovered when his first wife tracked down his second wife on social media.
The defendant was subsequently convicted in the Magistrates Court of Western Australia of one count of bigamy, with the other charges discontinued because he admitted the first offence. His lawyer argued that a conviction should not be recorded, as there had been a significant gap in time between the marriages, and he was remorseful and had already suffered personal and professional harm because of his actions. However, the Magistrate described the crime as “extremely serious in our culture” and asserted that it would have a significant impact on the psychological well-being of the women involved. The court found that the defendant, who was a mature adult at the time of both marriages, should have known better. The court recorded a conviction against the defendant and fined him $3,000 and court costs. Magistrate Crawford explained that a fine is the most appropriate penalty to emphasise to the community that this behaviour is unacceptable.
Please contact Taylor Rose on 1800 491 469 for advice on the legal implications of bigamy in Australia or any other legal representation.
