What is recognised as a marriage?
Same-sex marriages are now recognised as a marriage under Australian law. This follows the growing recognition of the human rights of same-sex couples that have been established in Canada, the United States, the United Kingdom and the Republic of Ireland. Australia has finally caught up with other common law jurisdictions in this respect.
All marriages made outside Australia must be evidenced by an official extract from the foreign registry. Proof of these marriages is needed, for example, in divorce cases. If the certificate is in a foreign language, the certificate must be filed with a translation and an affidavit by the translator that they are competent to translate the certificate. The Family Court will not usually accept a translation by a person who is not a qualified translator or interpreter or who is a close friend or relative of either spouse.
The Department of Immigration will arrange to translate marriage certificates and the supporting affidavits (a fee is payable). If foreign marriage certificates are unavailable, the Family Court is empowered to accept oral evidence of the parties as sufficient proof of the marriage.
Any marriage made overseas to which neither party is an Australian citizen will be recognised in Australia as a valid marriage if made according to the laws of the country in which the marriage was made.
Foreign marriages, that is, marriages according to the laws of a foreign country, are valid when made in Australia in the presence of consular or diplomatic staff from the appropriate countries. Such marriages will not be valid if the Australian rules against prohibited relationships are breached (s23, Marriage Act 1961 (Cth)). An example of a prohibited relationship is one between a brother and sister or between a person and their ancestor or descendant.
Polygamous marriages and other prohibited relationships
Australian law prohibits blood relatives from marrying and this includes adopted as well as natural children. Cousins are not prohibited from marrying one another. Polygamous marriages (that is, a marriage which permits a person to have more than one husband or one wife) are not valid in Australia whether made within or outside Australia (s23(1)(a)). However, a party to a polygamous marriage made outside Australia (for example, in an Islamic country) may obtain matrimonial relief such as custody, property settlement, and injunctions under the Family Law Act 1975 (Cth).
Australians may marry whilst overseas provided the ceremony is witnessed by a marriage officer (usually an Australian Consular official) authorised under the Marriage Act 1961 (Cth). These marriages are recorded in Australia in the Register of Overseas Marriages. Australians wishing to marry overseas should consult local consular officials.