Two cases involving purported marriages under Islamic law, entered into overseas by Australian residents, have received recent press coverage. The decisions of the courts involved seem to be clearly correct, and they helpfully illustrate some important principles of Australian law. A person whose home is Australia cannot legally travel outside this country and enter into a valid marriage with a minor, or enter into a second marriage when already lawfully married under Australian law. While Australian law generally supports religious freedom, the interests of children and women are legitimately seen to over-ride the religious freedom to enter into underage or polygamous marriages.

1. Overseas marriage to a minor not lawful

In the first case, a Family Court decision reported as Eldaleh [2016] FamCA 1103 (21 December 2016), the 30 year old applicant (the name, like most in Family Court proceedings, is a pseudonym for the purposes of the report) went through a ceremony of marriage in Egypt in mid-2016 with “Ms Eldaleh”, his purported wife, who was then 16 years of age. (The case was discussed in a press report, “Family Court refuses to OK man’s Middle East marriage to girl, 16“, The Australian, Jan 13, 2017.)

The couple are now in Australia, and the “wife”, now 17, is pregnant and due to give birth in mid-2017. Mr Eldaleh was seeking a declaration from the court that his Egyptian marriage was valid.

A purported marriage of a 16-year-old in Australia under local law is not valid, under s 11 of the Marriage Act 1961 (Cth) (“the Act”), which sets marriageable age as 18 years. There is an exception in the case of someone between 16 and 18 years, where an application may be made to an Australian judicial officer for permission, pursuant to s 12 of the Act. But unless such an application has been approved, a 16 year old may not be lawfully married in Australia. (See also s 23B(1)(e), which makes it clear that a purported marriage is void where “either of the parties is not of marriageable age.”)

The Act contains detailed rules for recognition in Australia of marriages entered into overseas, under Part VA. The general rule, under s 88D(1), is that “a marriage to which this Part applies shall be recognised in Australia as valid.” A marriage conducted in Egypt under Egyptian law would in some cases be regarded as such a marriage- see s 88C(1)(a). However, s 88D sets out a number of circumstances in which such marriages are not to be recognised. One such circumstance is where, under s 88D(2)(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.”

The concept of “domicile” is slightly complex, but in broad terms it addresses the question as to which country a person “calls home”- see the discussion in the case at paras [5]-[7]. Here it seemed clear that Mr Eldaleh was domiciled in Australia. As a result, his purported marriage to a 16 year old in Egypt could not be recognised as a valid marriage in Australia.

This is not an unexpected result. Part VA of the Act is designed to implement the system for recognition of overseas marriages agreed upon in the Hague Convention on Celebration and Recognition of the Validity of Marriages signed by Australia in July 1980. The then Attorney-General, Lionel Bowen, in his second reading speech on the amendments in 1985 implementing the Convention, noted :

These rules of recognition will, however, be subject to a number of exceptions permitted by Article 11 of the Convention and set out in sub-sections 88D (2) and (3). A marriage solemnised in a country outside Australia will not be required to be recognised as valid under the Convention rules where: Firstly, either party was, at the time of the marriage, already married to some other person; secondly, either party was not of the minimum Australian marriageable age… (Commonwealth House of Representatives Hansard, 20 March 1985, at p 617.)

The application for a declaration of validity was hence denied- see para [9]. Nor was it possible under s 12 of the Act to make a “retrospective” application for judicial approval of the marriage: s 12 only operated when an application was made prior to the marriage being entered into- see paras [11]-[12]. Of course, as Ms Eldalah was still under 18, she could now apply pursuant to s 12 in a fresh application, to marry Mr Eldalah. But those were separate proceedings for another day. (Interestingly, it seems that the “wife” had not been represented and did not testify in these proceedings, but it is unclear why this was so.)

2. Overseas polygamous marriage by Australian not valid

In the second case, Salama v Minister for Immigration and Border Protection [2017] FCA 2 (9 January 2017), the facts were more complex, but the principle exemplified in the first case, that an Australian resident cannot avoid the limitations imposed by Australian marriage law, simply by going overseas, was seen in operation again. (The case was noted in a press comment, “Bigamist awarded costs over visa cancellation as form ‘not clear’“, The Australian, Jan 12, 2017.)

In this case Mr Salama, an Egyptian citizen, arrived in Australia in 2003 on a “prospective partner” visa to marry Ms B. The marriage took place in Australia in May 2003. However, while still the holder of a provisional “partner visa”, Mr Salama visited Egypt in 2004 and married a Ms H under Egyptian law. Later, while still married to Ms B under Australian law in 2006, he was granted a permanent Australian visa. He remained in Egypt from 2006 to 2011. Meanwhile, in 2007 he had been granted a divorce by the Family Court of Australia from Ms B. In 2012 he applied as a visa holder to return to live in Australia. In filling in the online application form, he was asked to select from a “pop-up box” which contained a number of “marital status” options. He chose “divorced” (referring to his divorce from Ms B).

The Immigration Department notified that they were proposing to cancel his visa, on the basis that he had given incorrect information on the form. They claimed initially that he should have chosen “married”, as he was, they said, married to Ms H under Egyptian law. (This came out when Ms H later applied for a “partner” visa on her own behalf.)

If you have been following the above complex series of events, you will have noticed that in 2004, when the marriage to Ms H allegedly took place in Egypt, Mr Salama was already married under Australian law to Ms B. He claimed that for this reason, when asked in an Australian government form to declare his marital status, he answered “divorced”, because the only marriage he had entered into which was valid under Australian law was his marriage to Ms B, which had been terminated by divorce in 2007.

The judge, Perry J in the Federal Court, agreed. At one stage the lower decision makers had claimed that the online form should be regarded as simply asking about the “practical” realities of the relationships involved. But Perry J ruled that Mr Salama was correct in arguing that the form asked for the situation as it stood under Australian law. Her Honour was reinforced in this by a footnote to the form which specifically refereed to the Australian law of marriage on another topic. See the comments at para [60]:

I accept the appellant’s submission that as a matter of interpretation of the online application form, the answer “married” refers to a marriage that is “legally recognised” as is expressly stated in the pop-up relationship status explanation. The fact that the Tribunal did not refer to the pop-up explanation in its reasons (as the Minister pointed out) is irrelevant to the construction of the form. That explanation forms part of the online form approved by the Minister in accordance with the Migration Regulations for the purposes of ss 45 and 46 of the Act. I also accept the appellant’s submission that, read in context, the reference to “married” is to a marriage that is legally recognised under Australian law. This intention is put beyond doubt in my view by the asterixed notation in the relationship status pop-up explanation to the explanations for “De facto” and “married” that “Same-sex partners legally married overseas are not recognised as being in a valid marriage by the Marriage Act 1961 and therefore can only be recognised as being de facto partners” (emphasis added).

Referring to the recognition provisions noted previously, her Honour continued (in para [61]):

Section 88D of Part VA of the Marriage Act relevantly provides for the recognition of marriages as valid in Australia while also providing that certain marriages are not recognised as valid. The latter include where either party was, at the time of the marriage, a party to a marriage with another person which was recognised in Australia as valid.

Perry J also noted that the online form was potentially misleading, in that it only provided a limited range of answers, some of which might all be true at the same time. In this case, for example, the applicant was divorced but was also living in a “de facto” relationship; both answers would have been correct, and he should not have been penalised for providing an answer which was correct, even if another answer would also have been correct.

Whatever view one may take of the various relationships entered and terminated by Mr Salama, the case provides another illustration of the principle that a person cannot avoid the key elements of Australian law by temporarily moving overseas. Someone whose home is Australia cannot evade the prohibition on polygamy by a temporary absence from the jurisdiction. In that sense this decision, like the earlier one noted, is a welcome affirmation that key elements of Australian marriage law, such as capacity to marry and that marriage is only a relationship between two persons, are still an important part of our legal system.