Recognition of marriages
Is our marriage valid for visa purposes?
Marriages and migration law
Generally, migration law (namely, s12 of the Migration Act) mirrors the Marriage Act 1961 (the Marriage Act) in determining the ‘validity’ (recognition) or not of marriages, whether solemnized (that is, the ceremony performed) in or outside Australia.
If, for whatever reason, a marriage is not recognised under migration law (that is, s5F(2) requirements cannot be met), the parties’ relationship is to be assessed against the s5CB definition of de facto partner (and de facto relationship), for which see PAM3: Act – Act-defined terms – s5CB – De facto partner.
6.1 What is real consent
Reference is made in this and related departmental instructions to ‘real consent’.
‘Real consent’ is a concept in the Marriage Act, taking its definition from s23B of the Marriage Act (‘Grounds on which marriages are void’):
‘(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
By operation of s88D(2)(d) of the Marriage Act, foreign marriages also are not recognised under the Marriage Act if ‘real consent’ was absent.
“Real consent” may be a factor in certain Prospective Marriage (300) visa applications – see section 9 Arranged marriages. However, in assessing whether or not a marriage that has already been solemnized is recognised under migration law, it is not appropriate for departmental case officers to decide that a marriage is not recognised because ‘real consent’ was absent.
Rather, they should seek advice from Legal Opinions Section, National Office if:
- either party claims that “real consent” was not given and
- this is (or was) critical to a decision as to whether or not a spouse relationship exists (or existed).
7.1 Evidentiary requirements
All marriages solemnized under the Marriage Act (which are, of course, recognised under migration law, provided real consent was given) are evidenced by a marriage certificate stating the marriage was solemnized under that Act. (For visa purposes, the original certificate should be sighted, or a certified true copy of the marriage certificate should be provided as evidence that the marriage was solemnized under the Marriage Act.)
Most marriages solemnized in Australia are solemnized under the Marriage Act, unless performed under the laws of a foreign government by a consular official of that government.
In this and related departmental instructions, “foreign marriage” means a marriage solemnized other than under the (Australian) Marriage Act. It can, in limited circumstances, include certain marriages solemnized in Australia, that is, where solemnized under the laws of a foreign government by a consular official of that government. However, for the purposes of this instruction, it is assumed that the (foreign) marriage was solemnized outside Australia.
Whether or not a foreign marriage is recognised under migration law depends first on whether it is recognised (as valid) in the country in which it was solemnized. A marriage not recognised in the country in which it was solemnized will not be recognised under the Marriage Act nor, it follows, migration law.
Officers outside Australia should familiarise themselves with the local laws on marriage and recognition of marriages, keeping in mind that different rules may apply where a party to a marriage is not domiciled in the country where the marriage was solemnized.
If doubt arises as to whether or not a foreign marriage is recognised in the country where it was solemnized, officers:
- outside Australia should seek legal advice from a local authoritative source or
- in Australia should seek the advice of the consular representatives of the country where the marriage was solemnized.
The fact that a marriage may have been arranged by relatives, friends or marriage brokers does not affect recognition of the marriage (under the Marriage Act or migration law) unless one of the parties has not given “real consent” to the marriage – see section 6 Marriages and “real consent”.
Although an arranged marriage might meet s5F(2)(a) requirements, officers are expected to take particular care in assessing whether or not the relationship meets s5F(2)(b) and (c) requirements (that is, a genuine, on-going, mutually-exclusive marital relationship) to be a spouse relationship.
Prospective Marriage (TO-300) criteria require the applicant and prospective spouse to have met in person since turning 18 and be known to each other personally-
This requirement must be met by all TO-300 primary applicants, including those whose marriage was arranged before they turned 18.
Often an arranged marriage arises from commitments given before one or both of the parties to the marriage reached marriageable age. In such cases, the marriage commitments (contracts) are often given when the parties are infants and are characterised by the initial absence of informed and voluntary consent to the marriage of the prospective partners.
Although, by the time of visa application, the applicant and their prospective spouse often have given “real consent”, cases may arise where one of the parties (often the prospective spouse in Australia) indicates (either directly or through a third party):
that arrangements for the marriage are proceeding solely because of familial duress or cultural pressure and/or
the party concerned prefers that the marriage not proceed.
In either case, because Schedule 2 criterion 300.216 requires officers to be satisfied that ‘the parties genuinely intend to live together as spouses’, officers are in effect obliged to be satisfied that “real consent” – see section 6 Marriages and “real consent” – has been given by both parties to the impending marriage.
Officers should, however, exercise care and sensitivity where there are indications that real consent has not been given. There may be serious implications for the safety and wellbeing of the prospective spouse should that person’s unwillingness to marry become known to persons other than the s65 delegate.
Australian law requires that consent be given by both parties in person. In some countries, however, marriage by proxy is permitted.
In such instances officers should satisfy themselves that:
- the law of the country where the marriage was solemnized (that is, where the marriage celebrant authorised the marriage) permits consent to be given by proxy and
- the marriage was solemnized in accordance with that law and
- both parties gave real consent to the marriage – see section 6 Marriages and “real consent”.
If all of the above requirements are met, the marriage may be recognised for the purpose of s5F(2)(a). However, although the marriage itself may be recognised, the couple must still satisfy s5F(2)(b), (c) and (d) in order to satisfy all the requirements of s5F. That is, for the couple to satisfy the definition of spouse (s5F(1)), officers must be satisfied that, as well as being married
- the couple have a mutual commitment to a shared life as husband and wife to the exclusion of all others and
- the relationship is genuine and continuing and
- the couple live together, or do not live separately and apart on a permanent basis.
11.1 International common law
Migration law does not recognise marriages that (under s88E) are recognised in Australia solely because they are recognised as valid under common law rules of private international law.
Foreign marriages recognised under local civil law in the country where they are solemnized will generally be recognised in Australia under the Marriage Act. However, s12 of the Migration Act specifically excludes s88E of the Marriage Act:
’For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted’.
The following marriages, which may be recognised in the countries where they were solemnized, are not recognised as valid for the purposes of migration law, regardless of whether or not they are (or will be) recognised under the Marriage Act:
- certain polygamous marriages – see section 12 Polygamous marriages
- marriages of persons within a prohibited degree of relationship – see section 13 Marriages between persons within a prohibited degree of relationship
- certain underage marriages – see section 14 Underage marriages.
11.3 No real consent
Foreign marriages where the consent of either party was not real consent are not recognised under the Marriage Act – see section 6 Marriages and “real consent”.
Polygamous marriages can arise in those countries where persons may have two (or more) married relationships concurrently.
If either party to a married spouse relationship has a concurrent polygamous marital relationship:
- neither party is able to satisfy s5F(2)(b) requirements relating to the mutual exclusiveness of the married relationship and, it follows
- neither relationship is capable of being a married relationship.
In order for s5F requirements to be met, there can be only one ongoing partner relationship; any concurrent polygamous relationship/s must have already ended (by death or permanent separation).
12.3 Married or de facto
Assuming that there is only one ongoing partner relationship, the question may arise as to whether or not that relationship is, under migration law, a married relationship as described in s5F of the Act or a de facto relationship as described in s5CB(2) of the Act.
Only the first marriage in polygamous marital situations is capable of being recognised as a valid marriage under migration law (given the exclusion under migration law of s88E of the Marriage Act).
It follows that only this “first spouse” relationship (if the current ongoing relationship) is capable of satisfying s5F(2)(a) requirements.
Section 5F(2)(b) requirements must also be met in order for this “first marriage” to be a spouse relationship. In particular, the parties to this first marriage must have a mutual commitment to a shared life to the exclusion of all others, including any concurrent ‘spouses’. This in effect requires any concurrent “spouse relationships” to have ended.
Any marriage concurrent with the first marriage (that is, a second marriage having taken place before the first marriage has ended) is incapable of being recognised as a valid marriage under migration law even if it is the only ongoing marital relationship (for example, in circumstances where the “first spouse” has died):
- the ending of the first marriage (by permanent separation, divorce or death) does not alter the non-recognition under migration law of the ‘surviving’ marriage/s however,
- parties to the ‘surviving’ marriage are capable of satisfying s5CB ‘de facto relationship‘ requirements, again provided theirs is the only ongoing marital relationship (any other marital relationships must have ended, by death or permanent separation).
12.4 Separate non-spouse visa application
Nothing, of course, precludes any concurrent spouse from applying for a visa in their own right, that is, on the basis of satisfying primary criteria in circumstances where eligibility does not derive from a spouse relationship.
In Australia, marriage between parties who are within a certain degree of relationship to each other are void under Australian law (the Marriage Act). These relationships are between:
- a person and an ancestor or descendent of the person (that is, parent and child or grandparent and grandchild) or
- siblings (whether full blood or half blood).
(These prohibited relationship provisions apply equally to natural and adoptive relationships.)
A marriage between parties who are within a prohibited degree of relationship is not recognised under the Marriage Act or, it follows, migration law.
Marriages between cousins or between nephews and aunts or between nieces and uncles are not prohibited under the Marriage Act and, it follows, meet s5F(2)(a)requirements.
14.1 Marriage Act recognition
The marriageable age in Australia is 18 years of age. The Marriage Act does, however, recognise certain foreign marriages where one or both of the parties are under 18 years old.
In such instances, the marriage is recognised if both parties were at least 16 years of age at the time of marriage and:
- the marriage was valid in the country in which it was solemnized and
- neither party to the marriage, for the purposes of the Marriage Act, was domiciled in Australia at the time of the marriage (for guidelines on domicile’ see section 15 Domicile).
14.2 If either party is domiciled in Australia
A marriage is not recognised as valid under the Marriage Act if:
- one or both parties to the marriage were (under the Marriage Act) domiciled in Australia at the time of the (foreign) marriage and
- either party was under Australian marriageable age at that time.
In these circumstances:
- the marriage is incapable of being recognised under migration law but
- provided both parties have now turned 18, they may be considered against s5CB ‘de facto partner’ provisions. (There is a requirement in regulation 2.03Aregarding the age of de facto partners.)
14.4 Australian court order
A person between the age of 16 and 18 years who is domiciled in Australia is considered of marriageable age only if an order has been made by an Australian judge or magistrate under s12 of the Marriage Act authorising a marriage between that person and another specified person who is over 18 years. Such an order remains in force for three months.