Written by Jessica Arora, Associate Lawyer
The hilarious yet unrealistic storylines of Hollywood Rom-Coms, appear to have unfortunately caused confusion with respect to the validity of overseas marriages.
In Australia, the Marriage Act 1961 and the Marriage Regulations 2017 set out the laws and rules for getting married in Australia.
The Marriage Act provides that if the following two conditions apply, your marriage will be considered a valid marriage in Australia:
- Your marriage is performed in accordance with the laws of the country in which you are married; and
- Your marriage would have been recognised as valid marriage in Australia under Australian law had you been married in Australia.
In Australia, there are very limited circumstances in which a marriage may be deemed to be invalid and these are set out in the Marriage Act 1961 and include the following:
- At the time of the marriage one or both of the parties were legally married to another person;
- At the time of marriage one of the parties was a minor and under the age of 18 years;
- The bride and groom are close relatives; and
- One of the parties did not provide genuine consent to the marriage by reason of intoxication, duress, fraud, mistaken identity or lack of capacity.
With respect to marriages between couples of the same sex, as the Marriage Act was amended in 2017 to include marriage equality, overseas marriages between same sex couples are also recognised as being legally valid in Australia.
If you are planning a post COVID-19 overseas wedding you will need to ensure that you comply with the requirements of the country which you will be visiting. The foreign government may ask you both to prove that you are free to marry and you may have to provide a Certificate of No Impediment to Marriage and your original Divorce Order, Death Certificate of your ex-spouse or your Birth Certificate. Our expert family lawyers in Melbourne suggest you contact the specific country’s embassy, high commission or consulate for further information.
An overseas marriage is not required to be registered upon your return to Australia. However, if you are married overseas it is important that you ensure that your marriage is registered in that country and that you have evidence of the marriage including official, commemorative or keepsake documents you receive at the time of the ceremony.
Upon your return to Australia, you will have to contact the registry of births, deaths and marriages to enquire as to whether your foreign marriage certificate can be used as evidence to change your surname if you wish to do so.
In the unfortunate event that you decide to file an Application for Divorce in Australia following your overseas marriage, you are able to make an Application in the Federal Circuit Court of Australia and a certified copy of your overseas marriage certificate will be sufficient evidence of the marriage. If the marriage certificate is in another language, you will need to provide a translated copy to the Federal Circuit Court of Australia with your Application. If you do not have your foreign marriage certificate in your possession at the time of filing your Application, you will need to take all reasonable steps to obtain a copy and this may include contacting the embassy of the country you were married in, the births, deaths and marriages registry equivalent of that country or the celebrant. If you are unable to obtain a copy of your foreign marriage certificate you will need to swear and file an affidavit outlining your attempts at obtaining a copy of your marriage certificate.
Eales and Mackenzie’s Family Law and Divorce lawyers in Melbourne can provide you with precise and practical legal advice. If you are unclear as to whether your overseas marriage is valid or if you wish to file an Application for Divorce or for a Decree of Nullity, contact our family law Associate Lawyer, Jessica Arora on (03) 8621 1000 or at jessica@emlawyers.com.au for assistance.
