It is quite common for someone living in Australia to have been married overseas, whether because the couple previously lived overseas, a spouse was born in another country, or because an Australian couple chose a destination wedding. In fact, some couples opt for an overseas marriage to accommodate cultural traditions for their wedding that are unfeasible in Australia. While marriages celebrated overseas are generally recognised in Australia, there are several requirements to ensure that a marriage is legally valid.
Legal requirements for marriage
The rules that govern whether an overseas marriage is legally valid in Australia are outlined in the Marriage Act 1961 (Cth). This legislation sets out the legal requirements for marriage, including formalities, eligibility criteria, and procedural aspects.
First, any marriage must be compliant with the laws of the country where the union was solemnised. Second, the marriage must comply with the following four requirements under Australian law:
- Neither spouse is validly married to someone else; and
- Neither spouse is underage; and
- The spouses are not close biological relations (such as siblings, half-siblings, parent and child, grandparent and grandchild); and
- Neither spouse is incapable of informed consent because:
- they were mentally unable to understand the nature of their actions;
- they were misled, or consent was obtained under fraud or duress; or
- they were mistaken about the identity of their spouse.
Overseas same-sex marriage
One significant change in the last decade in Australia is the legal recognition of same-sex marriages that are performed overseas. In 2017, the law was amended in Australia to redefine marriage as the “union of two people to the exclusion of all others, voluntarily entered into for life”. As this new definition does not restrict marriage to heterosexual couples, same-sex marriages are now legally recognised in Australia, whether they take place overseas or in Australia.
Proof of overseas marriage
In Australia, there is no legal requirement to register a marriage that takes place overseas. However, from time to time it may be necessary for an individual to prove their marriage, such as if they wish to seek a divorce in Australia. To prove marriage validity, it is legally sufficient to have an original or certified copy of a marriage certificate or record of marriage that was issued by a competent foreign authority. The definition of “competent authority” in this case is anyone considered competent under the law of the country where the marriage took place (as defined in the Marriage Regulations 1963).
Planning to marry overseas
Anyone planning to travel overseas to get married must work within both the legal requirements in Australia and the other country’s legal system. For instance, many foreign authorities require a period of residency before they will allow a couple to marry in that country, while other countries require the couple to be of a faith recognised by the government.
There may be additional legal requirements to marry overseas, such as proving freedom to marry. Some governments require a Certificate of No Impediment to Marriage to be issued from a government authority such as the Australian embassy in the destination country. There may be other administrative requirements, such as the necessity for a Single Status Certificate or No Record Result from the relevant Registry of Births, Deaths and Marriages. Additional documents that may be required include passports, and original birth certificates (and for divorced and widowed individuals, the divorce decree or death certificate of their former spouse). Further advice specific to the destination country is available from their consulate, high commission or embassy.
Importance of legal recognition
Legal recognition of an overseas marriage carries implications for the couple’s rights, obligations, and entitlements in Australia. Recognised marriages in Australia have legal status in relation to property and inheritance rights and immigration benefits (although de facto couples can now access many of the same legal rights). It is, however, important to note that marriage to an Australian citizen does not automatically confer citizenship on their spouse, or guarantee that they can legally live in Australia. It is always necessary to apply for a valid visa to immigrate to Australia, regardless of marital status.
While it is generally straightforward to obtain recognition of an overseas marriage in Australia, that is not always the case if there are differences in legal systems, procedural requirements, and cultural norms, especially when it comes to unconventional and non-traditional marriages. Recognition of an overseas marriage is only possible if the marriage is compliant with the laws of the country where it was solemnised, in compliance with procedural formalities, both parties have capacity to marry, and there is no legal impediment. Any disputes over the validity of marriage, especially those alleging coercion, fraud, or incapacity, may require litigation to resolve.
To confirm if an overseas marriage is valid, it is important to seek legal advice. For any legal advice about recognition of an overseas marriage in Australia, or representation on any legal matter, please get in touch with the team at Taylor Rose on 1800 491 469.
