What is it?
Bigamy is being married to more than one person.
Since Polygamy is not legally recognised in Australia, a person who marries another person while still engaged in the legal or subsisting marriage, commits an offence of bigamy.
Bigamy is regulated under section 94 of the Marriage Act 1961 (Cth), and section 92 of the Crimes Act 1900 (NSW).
Under section 92 of the Crimes Act 1900 (NSW):
Whosoever, being married, marries another person during the life of the former spouse (including husband or wife), shall be liable to imprisonment for seven years.
Under section 94 of the Marriage Act 1961 (Cth)
A person who is married shall not go through a form or ceremony of marriage with any person. The maximum penalty under this act is imprisonment for 5 years.
If I am married, can I have a de facto relationship with someone else?
While bigamy is a criminal offence under the Crimes Act 1900 (NSW) and the Marriage Act 1961 (Cth), it is not an offence to have multiple simultaneous de facto relationships, or to have a de facto relationship with someone that is not your husband/wife.
In our multicultural society, such as the polygamous ‘Islamic marriages’ are not considered legal marriages, but it is considered to be ‘informal religious unions’. Such ‘marriages’ would not be recognised as a legal marriage under Australian law, but the relationships between different partners may be recognised as de facto relationships. Another example would be if a married person who was separated from his/her partner with no divorce filed, and living with a new partner in a relationship.
Some of the de facto relationship factors the court considers include:
- the length of the relationship;
- the living arrangements;
- whether there is or was a sexual relationship;
- the way finances were arranged;
- whether you owned property together and how you bought it;
- whether your relationship was registered under state or territory law;
- whether you had or cared for children together; and
- the way you presented your relationship in public.
Is my overseas marriage recognised in Australia?
While a marriage that takes place overseas can’t be registered in Australia, it will generally be recognised if:
- It’s recognised under the law of the country where the marriage took place
- Both parties are at least 18 years of age
- Neither party is married to another person at the time of marriage.
- Recognised marriages include overseas same-sex marriages that occurred prior to December 2017.
If you are married overseas with the above-mentioned factors met, the marriage is legally recognised in Australia, meaning that you cannot marry another person in Australia, if your previous spouse is still alive, and there is no divorce filled.
However, it is difficult to verify if a person has been previously married overseas or not. The offence of bigamy may go undiscovered. However, there are a number of cases where the offender lied on their second marriage, stating that they have never been married before, later their previous marriage was discovered, and the offence of bigamy charged under the Crimes Act.
Case study example
In the 2018 case Kirvan v Tomaras, where both parties are from an overseas country, they met and got married in Australia. However, the wife was married to another man prior to her arrival in Australia in 2015, she stated that she was married according to social custom, and she did not have a traditional marriage ceremony usually practised in her culture.
But since the registration of the wife’s first marriage is registered overseas. It is clear that at the time the ‘second’ husband and wife participated in a marriage ceremony in 2017, the wife was “lawfully married” to another person. And the judge was satisfied that a declaration should be made that the marriage between the husband and the wife be declared a nullity.
Possible Defences
If you have been charged with bigamy, section 92 of the Crimes Act 1900 (NSW) provides possible defences to this offence.
You need to prove that:
- your spouse (including husband or wife) has, at the time of such second marriage, been continually absent from you for the space of seven years; or
- if you were domiciled in New South Wales at the time of the first marriage, your spouse has been continually absent from New South Wales for the space of five years; and
- you believe that on reasonable grounds, at the time of the second marriage, your spouse is deceased.
If you or someone you know has been charged with a criminal offence of bigamy and would like to discuss potential defences, contact us today.