What is Bigamy?

In Australia, according to the Marriage Act 1961, marriage is defined as a union of two people, given that they are:

• Unmarried at the time of the marriage ceremony
• Of marriageable age
• Not marrying a person in a prohibited relationship
• Able to freely consent to the marriage

Bigamy occurs when an individual who is already in a marital union enters into marriage with a third person. This includes marriage ceremonies in foreign countries. In simple terms, bigamy is when one individual is married to more than one person simultaneously. In other words, it refers to the scenario where a person has more than one spouse simultaneously.

Bigamy vs Polygamy

Polygamy involves being married to more than one person simultaneously, so one must engage in bigamy to experience polygamy. It is the general union of three or more people in marriage. There are three forms of polygamy:

• Polygyny, where a man is married to several women
• Polyandry, where a woman has multiple husbands
• Group marriage, in which all members enter into a marriage-like contract, potentially involving multiple men and women

Is Bigamy a Crime in Australia?

Bigamy is a criminal offense under Section 94 of the Marriage Act 1961 (Cth). It’s unlawful for an individual who is already married to enter into another marriage while the initial legal marital status remains in effect.

According to Section 92 of the New South Wales Crimes Act 1900, bigamy is also a criminal offense. It states that a married person shall not marry another person while the initial contract is still legally valid.

In Australia, various legislative measures are in place to discourage bigamy. According to Subsection 23B(1)(a) of the Marriage Act 1961 (Cth), any second or subsequent marriage is void.

Marriage Ceremony Requirements

According to Section 42, a marriage ceremony must be commenced in the presence of an authorized marriage celebrant, for instance, a priest. It’s also necessary to provide the celebrant with the official documentation. Additionally, a Declaration of No Legal Impediment to Marriage needs to be completed. When individuals sign the form, they must agree that:

• They are not currently married to another person
• They are not in a prohibited relationship
• They are both of marriageable age at the time of the marriage
• They are not marrying a close relative such as a parent, grandparent, child, grandchild, brother, sister, or adopted child
• They are not marrying a descendant or ancestor
• No other circumstances would be a legal impediment to the marriage

While Australia acknowledges marriages that occur abroad, it does not legally recognize polygamous marriages.

Polygamous Marriages in Australia

Under Section 6 of the Family Law Act 1975, polygamous marriages may be recognized in Australia if a person got married in a country where polygamy is allowed. However, The Marriage Act 1961 (Cth) may take precedence over Section 6 of the Family Law Act 1975 when considering polygamous marriages entered into overseas, making the recognition of overseas polygamous marriages difficult.

What is the Punishment for Bigamy in Australia?

The penalty for bigamy can include imprisonment for up to 5 years. The court can also penalize a person who knowingly undergoes a marriage ceremony while already married to another person. In New South Wales (NSW), the penalty for bigamy can include imprisonment for up to 7 years.

Bigamy is an offense under both state and commonwealth legislation. You might wonder which penalty the accused will be charged with. Section 94 of the Marriage Act 1961 precedes any state or territory laws related to bigamy, meaning the court decides on a penalty in accordance with federal law.

Federal Law on Bigamy

According to Subsection 94(1A) of the Marriage Act 1961 (Cth) and the Criminal Code Act 1995 (Cth), you are guilty if you are married to two different people simultaneously, regardless of your intent. If you are charged with the offense of bigamy, a Magistrate in the Local Court will hear your case. If proven guilty, you will be penalized according to commonwealth law unless you can successfully defend the charges.

Defense to Bigamy

Mistake of Fact

Belief of Spouse’s Death

If the defendant believes that their spouse was deceased at the time of the second marriage, they can use this as a defense. But this belief must be based on reasonable grounds. For example, receiving the death certificate of the spouse or receiving news from credible sources.

Spouse’s Absence

If the spouse has been absent for seven years or a longer period, and the defendant has reasonable grounds to believe that their spouse is dead, this can also be used as a defense. If the defendant had tried to locate their spouse but was unable to do so, this could strengthen the defense.

Evidence Requirements

Certificate of Death

Section 94(7A) of the Marriage Act 1961 (Cth) allows courts to accept certificates from Australia or foreign countries as evidence. If the defendant has a death certificate for their spouse, it can be presented as evidence to support their defense.

What to Do in Case of Bigamy

If you have committed bigamy, please seek legal advice from a criminal lawyer as soon as possible.

If you find out that your spouse is involved in bigamy, you must establish that you are their first spouse. In that case, your marriage is legal. However, if they married you while they were already married, you should immediately file for a Decree of Nullity with the help of a family lawyer.

 

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Decree of Nullity

If an individual marries another person while already married, the second marriage is legally void according to Section 23 of the Marriage Act 1961 (Cth). Despite this, an application for a Decree of Nullity must be submitted to the Family Court of Australia. Obtaining a Decree of Nullity means the marriage is legally considered null and void as if it never occurred.

A party may request an annulment of a bigamous marriage. It can only be sought for the second marriage, which is considered invalid because the first marriage remains in effect and can only be terminated through divorce.

A marriage might also be considered void if one of the parties is incapable of understanding the nature and effects of the marriage ceremony or is unable to consent due to the marriage being forced.

When issuing a Decree of Nullity, the judge also determines whether the circumstances warrant a referral for criminal prosecution. Before you file for the decree of nullity, we recommend that you consult a family lawyer.

False Statement

In Australia, for a marriage to take place, both parties must sign a written notice and declaration specifying their current conjugal status and belief that there is no legal impediment to the marriage. On this notice, there is a specific box that requires parties to tick, stating: “Neither of us is married to another person.”

It is an offense punishable by eight months imprisonment under Section 104 for a person to give a notice to an authorized celebrant or sign a notice after it has been given, to the knowledge of that person, where the notice contains a false statement, an error, or is defective.

For example, if a person who has previously been married or is currently married declares that they have not been married or is not currently married, they may be committing the offense of giving a defective notice. Giving defective notice is outlined under Section 42 of the Marriage Act 1961 (Cth), which states:  A person shall not give a notice to an authorized celebrant under section 42, or sign a notice under section 42 after it has been given, if, to the knowledge of that person, the notice contains a false statement or an error or is defective.

What is Polyamory?

Polyamory means having an open, intimate, or romantic relationship with more than one person at a time without having any formal marriage contract. Polyamorous people can have any sexual orientation. Polyamorous relationships have many different types, including, but not limited to:

• Hierarchical poly
• Anchor partners
• Triad
• Quad
• Polyfidelity
• Vee
• Kitchen table polyamory
• Solo polyamory
• Polycule

Is Polyamory Legal?

Yes! Polyamory is legal. The Family Law Act states that polyamory—the act of polygamy without parties getting married—is not an offense. Under this law:

• An individual can have multiple de facto relationships simultaneously
• Multiple de facto relationships can exist even if a person is married to someone else
• The act of polygamy can be legal only if a person does not go through marriage ceremonies with multiple people

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FAQs

Can I bring my second wife to Australia?

As long as you are divorced or your first wife is not legally married to you anymore, you can bring your second wife to Australia. You can sponsor up to two overseas partners in your life, with each application having to be at least five years apart.

Can I sue my spouse for cheating?

If your spouse is not married to the person they are involved with or having a relationship with, then according to the law, this is polyamory, which is legal and is a private matter between two consenting individuals. Infidelity is not a crime in Australia.

If polygamy is a part of my religion, can I do a second marriage in Australia?

Even though polygamy is a standard practice in some religions and parts of the world, in Australia, it is not recognized and will be illegal regardless of your intent, religion, or country of origin.