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    An analysis of the law in relation to bigamy and polygamy including whether polygamy is legal in Australia, where polygamy is legal, the crime of bigamy, bigamy cases and much more.

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      Is Bigamy or Polygamy Legal in Australia?

      Polygamy in Australia is illegal. Polygamy refers to a person having more than one marriage at the same time. It comes from ancient Greece where the word meant “married to many” or “often married”.

      Legislation has been enacted that makes it a criminal offence to marry more than one person. This offence is known as bigamy. As such, it is illegal to have a second wife in Australia.

      What is Polygamy?

      Polygamy is defined as the practice or condition of having more than one spouse at one time. Generally, this is having more than one wife.

      Are Polygamous Marriages Recognised in Australia?

      Overseas polygamous marriages can be recognised in Australia under Section 6 of the Marriage Act which states that “a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage”.

      Other parts of the Marriage Act set out that certain overseas marriages are not recognised in Australia. Some of the marriages that are not recognised in Australia include marriages that that were the result of fraud, duress or mistaken identity, were incestuous or which involved a person under the age of 16 years.

      If you are legally married to a person in another country, you cannot marry another spouse in Australia. This is because under the Marriage Act 1961, an overseas marriage will be recognised in Australia providing that the marriage:

      • Must be recognised as valid under the law of the country at the time it was entered into
      • Would have been recognised as valid under Australian law if the marriage had taken place in Australia

      This means that you cannot legally be married in Australia if you already have a spouse overseas. It also means that if you have been involved in a polygamous relationship overseas, Australian law will not recognise the validity of the multiple marriages, as they would not have been considered legally valid had they occurred in Australia.

      Debate Over Polygamy in Australia

      There has been debate over polygamy in Australia as a result of the Plebiscite (Same-Sex Marriage) Bill 2016. It has also been an issue that the family court system has had to grapple with in recent years.

      Why is Polygamy Illegal in Australia?

      Polygamy is illegal in Australia because it is seen as an antiquated concept that is incompatible with female social, emotional and economic wellbeing. A common thread amongst cultures and countries that practice polygamy is that it is practised as polygyny rather than polyandry. This means that men can have multiple wives but women cannot have more than one husband. This is said to perpetuate a patriarchal form of gender inequality, given marriages are often arranged in these cultures.

      It has also been argued that the payment of a ‘dowry’ between the families of the prospective spouses leads to a woman being seen as property. This has an undesirable effect of incentivising a family to marry off daughters and denies females the right to marry who they want, or not get married at all.

      Less common arguments include that there is the propensity for large age gaps between husbands and wives which often leads to early widowhood. It may also lead to the entrapment of women in abusive relationships.

      It has been said that by its nature, polygamy causes emotional and financial isolation because it fosters neglect, jealousy, competition and conflict between a hierarchy of wives. Opponents also point to the sexual abuse of minors that occurs as a result of underage polygamous marriages. If those relationships existed in Australia, the adult would be subject to criminal charges requiring representation from sexual assault lawyers.  

      A real issue is the welfare of children from polygamous relationships. Opponents of polygamy suggest that children experience hardship and psychological harm from isolation, stigmatisation, having a disordered mix of adult figures and a lack of connection to a single, dedicated family.

      Those in favour of polygamy being legalised argue that consenting adults should be able to enter marriages without the interference of the government. It has been suggested that polygamy allows honesty in relationships, acts as a deterrent to infidelity and provides companionship for women. It has also been argued that arranged marriages promote or strengthen social, economic and political alliances and that children benefit from protection and influence.

      The practice can also provide a large support network for children of such relationships, including by exposing them to a broad range of adult role models. It is also suggested that there has been a movement away from the traditional two-parent paradigm. Further, the harms attributed to polygamous marriages are not be inherent to polygamous relationships and that such harms are already prohibited by law.

      What is the Difference Between Polygamy and Polyamory?

      Polyamory refers to a person having multiple partners, whether they are married or not. This is different to polygamy which deals with a person having multiple spouses. 

      While polygamy is illegal, it is legal to be polyamorous and have multiple de facto relationships. Because of this, a person can establish de facto relationships with more than one person.

      If a person is in multiple de facto polyamorous, they may be entitled to the benefits and payments typically available to monogamous couples.

      Therefore, if you are engaged in de facto relationships with multiple people, it is important to consider potential legal ramifications. You may  well as to work with a lawyer to create a financial agreement determining what will happen in the case of a relationship breakdown.

      How Common is Polygamy in Australia?

      Polygamy is uncommon in Australia. This is because it is illegal and seen as an antithesis to western culture and values. It has been argued that historically, polygamy has been used to oppress females and their social, emotional and economic wellbeing.

      Where is Polygamy Legal?

      Polygamy is legal in a number of countries including:

      • Afghanistan
      • Algeria
      • Bahrain
      • Bangladesh
      • Bhutan
      • Brunei
      • Cameroon
      • Chad
      • Central African Republic
      • Comoros
      • Congo
      • Djibouti
      • Egypt
      • Gabon
      • The Gambia
      • India
      • Indonesia
      • Iran
      • Kenya
      • Kuwait
      • Libya
      • Maldives
      • Mauritania
      • Morocco
      • Myanmar
      • Oman
      • Pakistan
      • Qatar
      • Saudi Arabia
      • Senegal
      • Singapore
      • Somalia
      • Sri Lanka
      • Sudan
      • Tanzania
      • Togo
      • Uganda
      • United Arab Emirates
      • Yemen and Zambia
      • Palestine
      • Iraq
      • Syria (except Kurdish-controlled areas).

      While it is legal to marry more than one spouse in these nations, the majority of them allow more than one wife rather than more than one husband.

      The practise of polygamy is also common amongst members of some religions such as Mormons in the United States and certain Muslims.

      Polygamy v Bigamy

      There is a subtle but important difference between polygamy and bigamy.

      Polygamy is the practice of having more than one spouse at one time. Bigamy is the act of going through a marriage ceremony.

      Is Bigamy a Crime in Australia?

      Bigamy is a crime in Australia pursuant to Section 94 of the Marriage Act 1961 which sets out two offences:

      “(1) A person who is married shall not go through a form or ceremony of marriage with any person.”

      and

      “(4) A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married.”

      Bigamy Crimes Act 1900 NSW

      Bigamy is also a crime in New South Wales pursuant to Section 92 of the Crimes Act 1900. You will be guilty of this offence if you marry a person whilst already married to another person.

      The maximum penalty for bigamy in NSW is seven years’ imprisonment.

      Section 93 of the Crimes Act also makes it an offence in NSW to marry a person knowing that person is already married. The maximum penalty for this offence is five years jail.

      Defences to Bigamy

      There are a number of defences to bigamy that are available. These are set out under the bigamy laws of Australia.

      If a person believed their spouse was dead, then this a defence to the crime of bigamy. Under the Marriage Act, if a person’s spouse has been absent for a period of seven years continuously, then this is a sufficient period to establish a presumption of death.

      The Marriage Act also confirms that bigamy is not committed if a person “goes through a form or ceremony of marriage with that person’s own spouse”, such as when a couple renews their wedding vows or celebrates a second wedding. Experienced criminal lawyers can advise you on any defences to bigamy that may be available to you. You can contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au.

      When prosecuting a bigamy offence, the spouse of the Accused “is a competent and compellable witness for either the prosecution or the defence” under section 94(6), but a marriage “shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage” under section 94(7). A court can accept either an original or certified copy of a certificate as evidence.

      Punishment for Bigamy in Australia

      Under Section 94 of the Marriage Act, the punishment for bigamy in Australia is up to five years imprisonment.

      This is the maximum penalty which is reserved for the most serious examples of this offending.

      Bigamy is an indictable offence, however it can be dealt with summarily.

      Are Polygamous Marriages Recognised in Australia?

      Overseas marriages are recognised in Australia but the legislation restricts recognition of marriages conducted in countries where polygamy is permitted.

      Section 6 of the Family Law Act states:

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

      However, an overseas marriage will not be recognised if:

      • a party was aged under 16;
      • the union was non-consensual due to fraud, duress or mistaken identity;
      • the union was incestuous.

      Preventing Bigamy

      The Marriage Act contains several provisions which operate to prevent bigamy including:

      • section 23B(1)(a) makes any second or subsequent concurrent marriage legally void;
      • section 42 for a marriage to be solemnised, it must take place before an authorised marriage celebrant, to whom official documents must be presented, including a written notice and declaration. The declaration must state the person’s current “conjugal status” and declare their “belief there is no legal impediment to the marriage”, which includes marriage to another person;
      • section 104 makes it an offence for a person to provide a notice to an authorised celebrant “if, to the knowledge of the person, the notice contains a false statement or an error or is defective”;
      • section 100 makes it an offence for a celebrant to solemnise a marriage if they believe there is a legal impediment to the marriage or that it would be void.

      Bigamy Cases in Australia

      There have only been a few bigamy cases in Australia. The Family Court of Australia delivered a decision in the case of Amarnath & Kandar [2015] FamCA 1138.

      The applicant wife commenced proceedings against her then husband. In course of the proceedings it was revealed that the wife had married another man in the past and had not divorced him.

      When she married her new husband, she completed a marriage certificate where she stated that she was “not previously married”.

      Upon receiving this evidence, the Judge was forced to make a decision as to whether the wife would need to be referred to the Attorney General for prosecution. Ultimately, the Judge decided that it was their duty to refer the wife for prosecution as the wife’s actions were in clear breach of the Marriage Act.

      The Family Court in 2010 delivered the decision of Hui v Ling [2010] FamCa 743. Ms Hiu and Mr Ling were in a relationship in Australia. From December 2009 to January 2010, Mr Ling returned to China where he married his former. The marriage ceremony took place in late December 2009 in Hong Kong. Mr Ling’s marriage in Hong Kong was recognised as being valid in Australia.

      Upon his return to Australia, Mr Ling married Ms Hiu. It was only after the wedding that Ms Hiu became aware that Mr Ling was already married.

      At the hearing of Ms Hiu’s application for a decree of nullity of marriage, Mr Ling conceded that he had married Ms Hiu whilst being married to another person.  Mr Ling gave evidence voluntarily and the court issued a certificate pursuant to Section 128 of the Evidence Act. The effect was that Mr Ling’s evidence could not be used against him in criminal proceedings.

      Mr Ling submitted that he experienced familial and cultural pressures to enter into an arranged marriage and that he yielded to those pressured while in China.  He then returned to Australia and married by his own choice.

      Both parties made submissions against the matter being referred to authorities for prosecution for bigamy. The court opined that Ms Hui’s evidence would be “sufficient to enable a prosecutor to make sufficient enquiries…as may enable a prosecution to be undertaken.”

      Decree of Nullity

      If a person is already married at the time of a marriage, the marriage is void under Section 23B of the Marriage Act 1961.  If this occurs, a person can apply to the Federal Circuit and Family Court of Australia for a decree of nullity of marriage.

      If a decree of nullity is made, a judge must then decide whether the documents from the court proceedings should be referred to the relevant prosecuting authorities. This will generally be the Australian Federal Police or state police. They will then decide whether a prosecution for bigamy should occur.

      Is Adultery a Crime?

      Adultery is not a crime in Australia. In fact, it is legal to have multiple de facto relationships at the one time. Section 4AA(5)(b) of the Family Law Act 1975 sets out that “a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship”.

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