Polygamy in Australia

Polygamy is not legally recognised in Australia. Legally recognised polygamous marriages may not be performed in Australia,[1][2] and a person who marries another person, knowing that the previous marriage is still subsisting, commits an offence of bigamy under section 94 of the Marriage Act 1961, which carries a maximum penalty of 5 years imprisonment.[3] However, the offence of bigamy only applies to attempts to contract a legally recognised marriage; it does not apply to polygamous marriages where there is no attempt to gain recognition for the marriage under Australian law.[4] Whether or not either or both partners were aware of the previous subsisting marriage, the second marriage is void.[5] Foreign polygamous marriages are not recognized in Australia. However, a foreign marriage that is not polygamous but could potentially become polygamous at a later date under the law of the country where the marriage took place is recognized in Australia while any subsequent polygamous marriage is not.[6] While under Australian law a person can be in at most one legally valid marriage at a time, Australian law does recognise that a person can be in multiple de facto relationships concurrently, and as such entitled to the legal rights extended to members of de facto relationships.[7]

In 2008, Australia's then Attorney General Robert McClelland said that "There is absolutely no way that the government will be recognising polygamist relationships. They are unlawful and they will remain as such. Under Australian law, marriage is defined as the union of a man and a woman to the exclusion of all others. Polygamous marriage necessarily offends this definition."[8] (Subsequently, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 changed the legal definition from "the union of a man and a woman" to "the union of two persons".) Former High Court Judge, the Hon. Michael Kirby said in 2012, "Human relationships are complicated, but these, I would respectfully suggest, are issues for the future".[9][10]

Family Court ruling

On 4 March 2016, the Full Court of the Family Court of Australia ruled in the case Ghazel & Ghazel and Anor [2016] FamCAFC 31 that a polygamous marriage is illegal in Australia but a foreign marriage, which is ‘potentially polygamous’ when it is entered into, will be recognised as a valid marriage in Australia. A marriage is ‘potentially polygamous’ if it is not polygamous but the law in the country where the original marriage took place allows a polygamous marriage of one or both partners to the original marriage at a later date.[11][12] The court also ruled that if the husband took a second wife, the second marriage would not be legally recognised while the husband was still married to his first wife.[6] It is worth noting that this was the opposite holding to the classic English case Hyde v. Hyde, which found that a marriage under laws which permit polygamy would not be recognised under English law (however, the common law of marriage has been since extinguished by legislation, which is why the decision in Hyde is not directly relevant to contemporary Australian law.)

Social security

Australian social security law recognises that multiple partners are assessed exactly the same as any other person, with no additional payments for having multiple partners.[13]

Prevalence

Indigenous communities

Polygamous relationships exist within some indigenous communities.[14][15]

Islamic communities

A small number of Islamist leaders advocated the legalisation of polygamous marriages in Australia,[16][17][18] which stirred controversial and emotional debate.[19] On an SBS, Insight program seeking to answer the question, "How common is polygamy in Australia?", Despite the stereo type of a Muslim having up to four wives, polygamy in the Islamic world is quite rare, and even rarer in Australia.[15] Proponents of polygamy have claimed that legalisation would "protect the rights of women," while opponents have claimed that it would "endanger the Australian way of life."[20]

General community

In the 2012 Sydney Gay and Lesbian Mardi Gras which was themed "universal and infinite love", the polyamory float featured a, "huge retro style rocket ship".[21] The 2014 Mardi Gras hosted the, "Polyamory Sydney ‘Birds of a Feather, love together’ – the infinite love Nest".[22]

In 2013, the 'Polyamory Action Lobby' submitted a petition to federal parliament saying, "For too long has Australia denied people the right to marry the ones they care about. We find this abhorrent. We believe that everyone should be allowed to marry their partners, and that the law should never be a barrier to love. And that's why we demand nothing less than the full recognition of polyamorous families."[10][23]

In 2014 and 2015 further recognition for, and acceptance of, polygamy was sought[24][25][26][27]

A number of Australian Facebook sites are dedicated to polyamory, including 'Sydney Polyamory'[28] and 'Poly Mardi Gras Float'.[29] Others are dedicated to polygamy, including a website set up to assist men in finding a second wife[30] reported to have 750 Australian members.[31][32] Polyamory groups in Sydney and Brisbane have a reported 1,900+ members.[33]

The functioning of monogamish and trouple relationships are being explored.[34][35] Concern has been raised with both redefining relationships as, "primarily about adult desire".[35]

See also

References
  1. "Rights charter is from 2009 BC | The Australian". Archived from the original on 12 September 2012.
  2. MARRIAGE ACT 1961 (Australia) s94(1).
  3. Sect 23(1)(a) of the Marriage Act 1961
  4. Bennett, Theodore (2019). "Why the Bigamy Offence Should be Repealed". Sydney Law Review. If s 94 were to be understood this broadly, then it may even prohibit purely religious or customary marriages that are not intended by the parties to be legally recognised. However, the Australian Law Reform Commission has considered and dismissed this kind of concern. In a 1986 report, the Commission observed that ‘[t]he “form or ceremony of marriage” to which s 94 refers is a form or ceremony of marriage under the Act’ and thus concluded that certain kinds of polygamous ‘traditional Aboriginal marriage[s] would not infringe the prohibition’.[35] In a 1992 report, the Commission reiterated that the bigamy offence involves ‘going through a form or ceremony of marriage which purport[s] to be a ceremony of marriage under Australian law’.
  5. MARRIAGE ACT 1961(Australia) s23B(1)a.
  6. "Recognition of international marriages in Australia". 2 June 2016.
  7. Klapdor, Michael (14 December 2016). "Polygamy and welfare". Parliament of Australia (Parliamentary Library). Retrieved 17 August 2020.
  8. "No recognition for polygamous marriage: A-G". www.abc.net.au. 25 June 2008.
  9. "Legal and Constitutional Affairs Legislation Committee". Australian Parliament House. 3 May 2012. Retrieved 6 October 2015.
  10. "Polyamory Action Lobby". Hansard: Australian Parliament House. 28 February 2013. Retrieved 1 October 2015.
  11. Robert Glade-Wright (1 June 2016). "Family Law Judgements: Divorce Validity of foreign marriage under Part VA of the Marriage Act". liv.asn.au. Law Institute Victoria. Retrieved 15 April 2018.
  12. Karen, D. (19 April 2016). "Potentially polygamous marriages recognised under Australian legislation". Armstrong Legal Family Law Blog. Retrieved 20 December 2016.
  13. Michael Klapdor (14 December 2016). "Polygamy, multiple relationships and welfare". Australian Parliament House. Retrieved 6 October 2017.
  14. "Aboriginal Marriages and Family Structures". Australian Law Reform Commission. Retrieved 20 October 2017.
  15. "How common is polygamy in Australia? And how does it work?". SBS. 29 May 2012. Retrieved 20 October 2017.
  16. "Muslim Leaders Call for Australia to Recognize Polygamy".
  17. Australia: Polygamy should be legal, says sheikh
  18. "Legalise polygamous unions: Muslim leaders". The Age. 24 June 2008.
  19. June 26, Edward M. Gomez on; AM, 2008 at 12:00 (26 June 2008). "Polygamous marriages, in Australia?". World Views.
  20. "Polygamy - the right to put down women". NewsComAu. 26 June 2008.
  21. "Every float, every group– Mardi Gras Parade2012 revealed". Same Same. 24 February 2012. Archived from the original on 15 December 2013. Retrieved 9 October 2017.
  22. "Mardi Gras Parade 2014 – All the floats you'll see". Same Same. 27 February 2014. Archived from the original on 7 March 2014. Retrieved 9 October 2017.
  23. Cook, Michael (5 March 2013). "Taking same-sex marriage step by step". Retrieved 1 October 2015.
  24. Feeney, Katherine (11 June 2015). "Does a polyamorous lifestyle reward followers with a better life?". WA Today. Retrieved 19 August 2015.
  25. Baird, Julia (30 June 2015). "The Drum talks with US sex educator Janet Hardy". ABC News. Retrieved 19 August 2015.
  26. Wra, Tyson (25 September 2015). "Free love in the 21st century: Why polyamory is taking off". News Ltd. Retrieved 1 October 2015.
  27. Perkins, Miki (8 September 2015). "Boomers with benefits: a free love revolution with no rings attached". The Age. Retrieved 1 October 2015.
  28. "Sydney Polyamory". Facebook. Retrieved 9 October 2017.
  29. "Poly Mardi Gras Float". Facebook. Retrieved 9 October 2017.
  30. "SecondWife.com - Muslim Polygamy Match Making Service". www.secondwife.com.
  31. "Secondwife.com website gaining popularity in Australia, founder says". SBS News. 11 September 2016. Retrieved 6 October 2017.
  32. Olding, Rachel (10 September 2016). "Secondwife.com site gaining traction in Australia, says UK founder". Sydney Morning Herald. Retrieved 6 October 2017.
  33. "Polyamory groups on Meetup". Polyamory Dating. Retrieved 8 October 2017.
  34. Jackson, Gabrielle (25 October 2013). "Monogamy or Monogamish". Hoopla. Archived from the original on 14 April 2015. Retrieved 8 October 2015.CS1 maint: bot: original URL status unknown (link)
  35. Anderson, Ryan T. "Get ready for the throuples". National Review. Retrieved 6 October 2015.
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