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Jacky Campbell, March 2016

Polygamous marriages recognised under Australian law—but not gay marriages

In 2004, Prime Minister John Howard amended the Marriage Act 1961 (Cth) to expressly restrict the ability of couples to marry, unless they are a heterosexual couple. In Ghazel & Ghazel [2016] FamCAFC 31, the Full Court of the Family Court of Australia considered the question of whether an unintended consequence of the amendments was to invalidate polygamous and potentially polygamous overseas marriages. These marriages were recognised as valid prior to 2004, if they were valid in the country in which the marriage occurred.

Status of polygamous marriages under the Family Law Act

Although not discussed in Ghazel, polygamous marriages are recognised under the Family Law Act 1975. Section 6 of that Act provides:

“For the purposes of proceedings under this Act, a union in the nature of a marriage which is, or has been at any time, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage”.

Section 88E(4) of the Marriage Act 1961 protects the application of s 6 Family Law Act from the operation of Pt VA Marriage Act. Pt VA governs the recognition of foreign marriages in Australia. This means that orders can still be sought under the Family Law Act in relation to a polygamous marriage which is invalid for the purposes of the Marriage Act.

Background

Mr Ghazel was born in Iran and Mrs Ghazel was born in England. They married in Iran in 1981 according to the law of that country. That law permitted a husband, subject to certain conditions, to take up to 3 additional wives. Although this was Mr Ghazel’s first marriage, the parties’ marriage in Iran was “a potentially polygamous marriage”.

The parties moved from Iran to England, and in late 1981, they went through another marriage ceremony at an English Registry Office. On the English marriage certificate the parties were described as “bachelor” and “spinster”.

In 2003, Mrs Ghazel and the 2 children of the marriage migrated to Australia. Mr Ghazel followed in 2005.

In 2008, the parties filed a joint application for divorce in Australia. The application only referred to their marriage in England. A divorce order was made by the Federal Magistrates Court of Australia (as it then was) in early 2012.

In August 2013, in proceedings initiated in Iran by Mrs Ghazel (apparently to determine how it was that Mr Ghazel was able to marry again in Iran allegedly without Mrs Ghazel’s consent), an Iranian Court concluded that the Iranian marriage between Mr and Mrs Ghazel was still in existence.

The Family Court proceedings

In November 2014, Mrs Ghazel filed an application in the Family Court of Australia seeking an order that the marriage between herself and Mr Ghazel in 1981 in Iran be declared valid in accordance with s 88D Marriage Act.

Mr Ghazel opposed the making of the declaration.

Justice Hogan delivered reasons for judgment, in which she confirmed that the definition of “marriage” was “the union of a man and a woman to the exclusion of all others voluntarily entered into for life” as set out in s 5(1) of the Marriage Act.  Pursuant to Pt VA of that Act, foreign marriages that are recognised as valid under the local law where the marriage took place are recognised as valid in Australia (s 88C(1)).

Justice Hogan concluded, however, that the definition of “marriage” in s 5(1) meant that a marriage solemnised in a foreign country must be monogamous for it to be recognised as valid in Australia, and therefore polygamous marriages were not recognisable in Australia. As the Iranian marriage of Mr and Mrs Ghazel was “potentially polygamous”, it was not recognised as valid in Australia.

The Appeal

Mrs Ghazel appealed to the Full Court of the Family Court. The Attorney-General for the Commonwealth was invited by the Full Court to intervene, and he did so.

In Mrs Ghazel’s written and oral submissions, she contended that the case was a test case with wide ramifications. If Justice Hogan was correct, all married couples moving to Australia whose marriages were celebrated in countries where the local law permitted polygamous marriages, upon changing domicile to Australia became “un-married”.

The Commonwealth’s position was that “a potentially polygamous marriage”, which would have been recognised under Pt VA before the Marriage Amendment Act 2004 (“the 2004 amendments”), continued to be recognised. However, the Commonwealth accepted there was strength in the arguments against this recognition.

The Commonwealth’s case started from the position as it was prior to the 2004 amendments. The provisions of Pt VA included a “default recognition rule”. Section 88C provides that Pt VA applies to foreign marriages, where the marriage was recognised as valid under the relevant foreign law at the time it was solemnised, or is so recognised at the time at which the validity of the marriage falls to be determined. Foreign marriages which are within s 88C(1) are recognised as valid in Australia pursuant to s 88D(1), and that primary rule applies unless one of the exceptions in s 88D(2)-(5) applies. The exceptions include that the parties were in a “prohibited relationship” or the consent of either of the parties was not a real consent.

A “potentially polygamous marriage” is not expressly included in the exceptions to the primary rule of recognition although it might be thought, as canvassed by the Commonwealth, that the exception contained in s 88D(2)(a), that one of the parties to the marriage was at the time of the marriage married to another person, included a “potentially polygamous marriage”. However, the Commonwealth argued that this exception, which is described as “a first in time rule”, only precludes recognition of the second marriage, not the first “potentially polygamous marriage”.

The question before the Full Court was whether the 2004 amendments changed this position.

In relation to the wording of s 88B(4) – which was inserted by the 2004 amendments – the Commonwealth relied on the words “to avoid doubt” in the new definition of “marriage”. The Commonwealth posed the question as to what was the “doubt” which was being addressed. At that time, “marriage” included “a potentially polygamous marriage”. The doubt which was being addressed by Parliament was whether “marriage” extended to unions between a man and a man or a woman and a woman. This interpretation was supported by the extrinsic Parliamentary materials. The Explanatory Memorandum, the second reading speech and the Parliamentary debates were entirely focused on the issue of same-sex marriages, and none made reference to polygamous marriage.

The Commonwealth also relied upon the fact that the 2004 amendments did not alter s 88A, which provides that the object of Pt VA is to give effect to The Hague Convention on the Celebration and Recognition of the Validity of Marriages. The 2004 amendments did, however, remove the possibility of foreign same-sex marriages being recognised under the Marriage Act. If the 2004 amendments were intended to alter the position with respect to polygamous and potentially polygamous marriages, the Commonwealth argued that the intention would have been very clear in the text of the amending legislation and in the various extrinsic Parliamentary materials, but no such intention was manifested.

The Full Court of the Family Court accepted the arguments of the Commonwealth and made the declaration as to validity sought by the wife.

 

 

©  Copyright – CCH and Jacqueline Campbell.  This paper uses some material written by the author for publication in CCH Australian Family Law and Practice.  The material is used with the kind permission of CCH.

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

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Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Jane Bentley

Senior Associate

University Qualifications

Masters of Applied Law (Family Law), College of Law

Bachelor of Laws, Victoria University

Bachelor of Science, University of Melbourne

Email Jane Bentley

jbentley@fortefamilylawyers.com.au

Other Qualifications

Accredited Family Law Specialist, Law Institute of Victoria

Jane is a Senior Associate at Forte Family Lawyers. Jane is an Accredited Family Law Specialist as a recognised by the Law Institute of Victoria. Accredited Specialists demonstrate superior knowledge, experience and proficiency in their specialist area of law.

Additionally, Jane has undertaken a Masters of Applied Law in Family Law.

Prior to joining the firm, Jane has worked in both the private and community sectors where she worked on both complex parenting and property matters, regularly appeared in the Family Law Courts and through her work at a commercial firm Jane was able to build and enhance her commercial skills. Throughout her career, Jane has worked collaboratively with commercial lawyers providing advice where both family and commercial law intersect, as well as working directly with professionals on family law matters including psychologists, mediators, accountants and financial advisors.

Jane has a wide range of experience in different family law matters including financial agreements, family violence, parenting, IVF issues, matters involving grandparents, Hague Child Abduction Convention, child support, property and spousal maintenance.

Jane prides herself on her ability to communicate effectively with her clients during an emotional and challenging time. Jane builds strong relationships with her clients as she recognises that the legal system can appear complex and daunting and works with her clients to guide them through the process.

Jane is a member of the Courts Practice and the Property and Maintenance Committees of the Law Institute of Victoria which ensures that she is appraised of recent developments in family law and at the Family Law Courts. Jane is also a member of the Family Law Section of the Law Council of Australia.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

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Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Natasha Mastroianni

Senior Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.