A void marriage is of no effect in law.  It is not a marriage at all, whether or not the decree declaring it void has been pronounced.[1]

It is not uncommon for a couple to have two marriage-like ceremonies, especially where one spouse has family interstate or overseas.

So, which one counts when you want a divorce?

Section 113 of the Marriage Act 1961 (Cth) (the Marriage Act) creates a general prohibition on persons who are already legally married to each other, marrying each other again.  There are some exceptions, for example where there is doubt about the validity of the first marriage. 

While section 113 creates a prohibition against marrying someone you are already married to, it does not expressly say anything about the validity (or otherwise) of a marriage conducted in contravention of the section, or what the consequences are for those who breach the section. 

Section 23B(1) of the Marriage Act provides a list of circumstances in which a marriage will be void, paraphrased below:

  • either of the parties is, at the time of the marriage, lawfully married to some other person;
  • the parties are within a prohibited relationship (familial relationships);
  • by reason of section 48 (formal requirements for marriages solemnised in Australia) the marriage is not a valid marriage;
  • the consent of either of the parties is not a real consent because:
  • it was obtained by duress or fraud;
  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
  • that party did not understand the nature and effect of the marriage ceremony; or
  • either of the parties is not of marriageable age;

and not otherwise.

The grounds listed in section 23B of the Marriage Act purport to be exhaustive, and they do not include a marriage to someone who is already your spouse.  

Fortunately, this does not mean that parties who have engaged in 2 marriage ceremonies need to be granted 2 divorce orders. As a general rule, if the first marriage is valid, then the second marriage is not.

In Kapadia and Kapadia,[2] Kay J relied on the power under section 113(1) of the Family Law Act 1975 (Cth) (Family Law Act) to declare a second marriage (to the same person) invalid.[3]  In the more recent decision of Nelson & Nelson,[4] Hannam J found that on the basis of “common sense and logic”, any such marriage between spouses must be void, notwithstanding the apparently exclusive nature of the words at the conclusion of section 23B(1) of the Marriage Act.[5]

Interestingly, there does appear to be a distinction (largely without a difference) between a void marriage and an invalid marriage.  A decree of nullity may be granted by the Family Court of Australia in the case of a void marriage only.[6]  The Family Court also has a separate power to make a declaration that a marriage is invalid.[7]

The cases cited above involved second marriage ceremonies conducted in Australia.  The validity of a second marriage may depend on whether one (or both) of the marriage ceremonies were conducted overseas.

Part VA of the Marriage Act operates to recognise, in Australia, marriages solemnised overseas (which are recognised as valid marriages under the local law).  There are some exceptions, such as when either party to the marriage was married to some other person at the time of marriage, or when either party was not of marriageable age in Australia.  Already being married to the person you are marrying, is not included as one of those exceptions.

In the case of Lieu & Antcliff,[8] the bride and groom were already lawfully married to each other (having been married in a registry office in Melbourne some years prior) when they renewed their vows and engaged in a marriage ceremony in Fiji (Fijian marriage).   

The couple separated shortly after the Fijian marriage.  They were granted a divorce order in respect of their first marriage in Melbourne without difficulty.  However, they were initially not granted a divorce order in respect of the Fijian marriage because of concerns as to its validity.

The Wife subsequently applied to the Family Court of Australia seeking orders for, in the alternative:

  • a decree of nullity in respect of the Fijian marriage;
  • a declaration of invalidity in respect of the Fijian marriage; or
  • if the Fijian marriage was valid, a divorce order in respect of the Fijian marriage.

The Wife filed evidence from a Fijian lawyer who deposed that it was not an offence under Fijian law to marry a spouse. The lawyer further deposed that the Fijian marriage was valid under Fijian law, notwithstanding that the parties were already married to each other.

It followed then, under Part VA of the Marriage Act, that the Fijian marriage was recognised in Australia, notwithstanding that it was a marriage between two people who were already spouses.

If you have been through two marriage ceremonies with your spouse, and want a divorce, then you should carefully consider the circumstances of each ceremony, and seek legal advice before applying for a divorce.

The contents of this article are for reference and discussion purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.  

[1] Zua v Huang [2015] FamCA 873 at [15].

[2] (1991) FLC 92-245.

[3] See also Anouihl & Temke [2017] FamCA 325.

[4] [2016] FamCA 516.

[5] See also Zau & Huang [2015] FamCA 873.

[6] Family Law Act 1975 (Cth), s 51.

[7] Family Law Act 1975 (Cth), s 113(1).

[8] [2016] FamCA 942.

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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