An overseas marriage is quite common in Australia with many Australians choosing to have a destination wedding. However, a common question we are asked by many couples exploring the option of nuptials in a foreign country is: once we are married overseas, do we need to marry again in Australia in order for our marriage to be valid? Pursuant to the Marriage Act 1961, you cannot register an overseas marriage in Australia, however, the marriage will be legally recognised in Australia as long as you meet some essential legal requirements. Here’s everything you need to know about an overseas marriage in Australia.
Australians and Overseas Marriage
An overseas marriage is usually recognised in Australia if at the time of getting married:
- Your marriage was recognised as valid under the law of the country in which you were married; and
2. The marriage would have been recognised as a valid marriage under Australian law if you had married in Australia.
Under the Marriage Act 1961, either the original or a certified copy of the marriage certificate, or a record of the marriage issued by a competent authority in a foreign county, is considered proof of the overseas marriage.
Should you choose to marry overseas, there may be specific legal requirements within that country for you to have a valid marriage. We suggest contacting the chosen country’s embassy or consulate to find out what these requirements are by visiting the Department of Foreign Affairs and Trade.
Some countries may require you have a certificate of No Impediment to Marriage (CNI), a document that states you are legally allowed to marry abroad. You can ask an authority from your destination if you require a CNI. You may also require either a Single Status Certificate or a No Record Result, both certifying that you are currently not married in the state where you lived before marrying overseas.
What Factors Might Make an Overseas Marriage Invalid?
There are several circumstances where an overseas marriage may be deemed as invalid in Australia. These circumstances set out in section 88D of the Marriage Act 1961 include:
- Either of the parties was, at the time of the marriage, in a valid marriage to someone else;
2. Either of the parties was not of ‘marriageable age’ (not 18 years of age);
3. The parties are within a prohibited relationship defined in section 23B of the act (i.e. the parties are brother and sister);
4. The consent of either parties was not real due to one of the reasons set out in section 23B (the consent was obtained by duress or fraud, a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed, or a party was incapable of understanding the nature and effect of the marriage ceremony).
Overseas Same Sex Marriages
The Marriage Act 1961 was amended in 2017 to redefine marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life”. This means that the right to marry is no longer restricted based on sex or gender in Australia.
The Marriage Act recognises both existing and future same-sex marriages overseas provided they fulfill all the requirements of a valid marriage both in Australia and in the chosen country.
What About Obtaining a Divorce If Married Overseas?
Another common question asked is if your overseas marriage makes you eligible for obtaining a divorce in Australia.
Yes, you can apply for a divorce in Australia if you were married overseas. You must, however, satisfy the Court that either you or your spouse:
- Regard Australia as your home and intend to live indefinitely in Australia;
- Are an Australian citizen by birth or descent;
- Are an Australian citizen by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months prior to filing for divorce.
You must provide the Court with a copy of your marriage certificate, and it if is not in English, you must file an English translation of it as well as an affidavit from the translator.
You must also satisfy all other requirements for divorce such as living separately and apart from your spouse for at least 12 months with no reasonable chance of getting back together.
Speak to Our Lawyers About Your Overseas Marriage
If you have any questions about the validity of your overseas marriage, or you have recently separated from your spouse and you wish to apply for a divorce with a foreign marriage certificate, our experienced family lawyers can help. Please get in touch and we will assist you in achieving your desired outcome.