While legislating for marriage equality may seem like a simple choice of “yes” or “no”, in Australia there are presently extraordinary problems that arise as a result of saying “I do”.

In Australia, “marriage” is currently defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. Tanya Plibersek is now seeking to amend this definition from “a man and a woman” to “the union of two people” through the Marriage Amendment (Marriage Equality) Bill 2016. This amendment would allow Australians to marry regardless of their sex, sexual orientation, gender identity or intersex status.

The Bill, introduced into the House of Representatives on 2 May 2016, is the most recent in a long line of similar attempts to amend the controversial definition of “marriage” under the Australian Marriage Act 1961.

For family lawyers, debate around marriage equality brings to the fore the potential consequences of same sex couples marrying overseas and subsequently seeking a divorce in Australia.

The question of the validity of an overseas marriage was recently before the Full Court of the Family Court of Australia, in which a polygamous marriage entered into in Iran was held to be recognised as valid in Australia under the Marriage Act 1961.

The case involved parties who married in Iran in 1981 according to the law of that country, which permitted a husband to take up to three additional wives. The marriage was therefore considered “a potentially polygamous marriage”.

The couple relocated to Australia in 2003, and in 2008 filed for and were granted a divorce by the Federal Magistrates Court (as it then was). In 2013, however, an Iranian Court concluded that the 1981 marriage between the parties was still in existence. The wife then filed an application in the Family Court of Australia seeking an order that the marriage be declared valid. At trial, it was held that the definition of “marriage” in the Marriage Act 1961 meant that a marriage solemnised in a foreign country must be monogamous for it to be valid in Australia, and as the Iranian marriage was “potentially polygamous”, the marriage could not be recognised as valid.

The wife appealed the trial decision. The appeal required the Full Court to undertake a detailed review of the 2004 amendments made to the Marriage Act 1961. The appeal turned on the words “to avoid doubt” in relation to the recognition of foreign marriages in Australia. The “doubt” being addressed was whether “marriage” extended to same-sex marriages (ie. “to avoid doubt” that marriage is only between a man and a woman).

It was held that the 2004 amendments, while unambiguously excluding the recognition of foreign same sex marriages, did not exclude foreign, “potentially polygamous” marriages from being recognised as valid in Australia. The Full Court made the declaration that the marriage was valid. Since the marriage was held to be valid, the wife was then at liberty to seek a divorce in Australia.

What then happens to an Australian same-sex couple who marry in a country where same-sex marriage is permitted, return home and later wish to divorce in Australia? The simple answer is, they can’t.

This is because in order to apply for a divorce in Australia, the marriage one is seeking to end must be recognised as valid in Australia. As discussed above, the Marriage Act 1961 makes it abundantly clear that overseas same-sex marriages are not recognised as valid in Australia.

The Family Law Act 1975 provides that parties may seek an annulment if the marriage is void. Grounds for a marriage being void include:

  • where one of the parties is already married to someone else
  • if the parties are in a “prohibited relationship” (for example, marrying a relative)
  • if consent of either party to the marriage was obtained by fraud or duress, or
  • if either of the parties is not of marriageable age.

They do not include same sex marriage.

Therefore, the Australian Family Courts are unable to divorce or annul the marriage of same-sex couples who were married abroad. Instead, same sex couples would need to travel overseas and establish the jurisdictional requirements to apply for a divorce in that country.

In Australia, the minimum jurisdictional requirement to seek a divorce is for a party to be “ordinarily resident” in Australia for the last 12 months. New Zealand and Britain have similar requirements. This would mean, for example, an Australian couple married in New Zealand would neither be able to divorce in Australia nor in New Zealand unless they fulfil New Zealand’s jurisdictional requirement.

Marriage equality has remained a subject of debate for many years, and is likely to be an issue of great significance in this year’s looming Federal election.