Polygamy in Australia

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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]

Contents

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 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]

Section 6 of the Family Law Act 1975 provides for recognition of polygamous marriages, entered in to outside Australia, for the purposes of proceedings under this Act. [11]

Family Court ruling

On 4 March 2016, the Full Court of the Family Court of Australia ruled in the case Ghazel & Ghazel and Anor [12] 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. [13] [14] 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).[ clarification needed ]

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. [15]

Prevalence

Indigenous communities

Polygamous relationships exist within some indigenous communities. [16] [17]

Islamic communities

A small number of Islamist leaders advocated the legalisation of polygamous marriages in Australia, [18] [19] [20] which stirred controversial and emotional debate. [21] According to an SBS, Insight program seeking to answer the question, "How common is polygamy in Australia?" despite the stereotype of a Muslim having up to four wives, polygamy in the Islamic world is quite rare, and it is even rarer in Australia. [17] 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." [22]

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". [23] The 2014 Mardi Gras hosted the, "Polyamory Sydney ‘Birds of a Feather, love together’ – the infinite love Nest". [24]

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] [25]

In 2014 and 2015 further recognition for, and acceptance of, polygamy was sought.[ who? ] [26] [27] [28] [29]

A number of Australian Facebook sites are dedicated to polyamory, including 'Sydney Polyamory' [30] and 'Poly Mardi Gras Float'. [31] Others are dedicated to polygamy, including a website set up to assist men in finding a second wife [32] reported to have 750 Australian members. [33] [34]

The functioning of monogamish and throuple relationships are being explored. [35] [36] Concern has been raised with both redefining relationships as, "primarily about adult desire". [36]

See also

Related Research Articles

Polygamy is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny. When a woman is married to more than one husband at a time, it is called polyandry. In sociobiology and zoology, researchers use polygamy in a broad sense to mean any form of multiple mating.

<span class="mw-page-title-main">Polyamory</span> Intimacy for multiple partners

Polyamory is the practice of, or desire for, romantic relationships with more than one partner at the same time, with the informed consent of all partners involved. People who identify as polyamorous may believe in open relationships with a conscious management of jealousy and reject the view that sexual and relational exclusivity (monogamy) are prerequisite for deep, committed, long-term, loving relationships. Others prefer to restrict their sexual activity to only members of the group, a closed polyamorous relationship that is usually referred to as polyfidelity.

<span class="mw-page-title-main">Sydney Gay and Lesbian Mardi Gras</span> LGBT pride event

The Sydney Gay and Lesbian Mardi Gras or Sydney Mardi Gras is an event in Sydney, New South Wales attended by hundreds of thousands of people from around Australia and overseas. One of the largest such festivals in the world, Mardi Gras is the largest Pride event in Oceania. It includes a variety of events such as the Sydney Mardi Gras Parade and Party, Bondi Beach Drag Races, Harbour Party, the academic discussion panel Queer Thinking, Mardi Gras Film Festival, as well as Fair Day, which attracts 70,000 people to Victoria Park, Sydney.

<span class="mw-page-title-main">Bigamy</span> Act of having two concurrent marriages

In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing their spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction. Bigamy laws do not apply to couples in a de facto or cohabitation relationship, or that enter such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.

<span class="mw-page-title-main">Marriage Act 1961 (Australia)</span>

The Marriage Act 1961(Cth) is an Act of the Parliament of Australia which regulates marriage in Australia. Since its passage in 1961, it has been amended on numerous occasions and applies uniformly throughout Australia (including its external territories); and any law made by a state or territory inconsistent with the Act is invalid. The Act was made pursuant to power granted to the federal parliament under s.51(xxi) of the Australian Constitution. Although the federal parliament was given the power to pass laws about marriage at federation in 1901, it did not use this power until the adoption of the Act, while before 1961, each Australian state and territory had its own marriage laws.

Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.

<span class="mw-page-title-main">LGBT rights in Australia</span>

Lesbian, gay, bisexual and transgender (LGBT) rights in Australia significantly advanced over the latter half of the twentieth century and early twenty-first century, and are now ranked among the highest in the world. Opinion polls and the Australian Marriage Law Postal Survey indicate widespread popular support for same-sex marriage within the nation. A 2013 Pew Research poll found that 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth-most supportive country surveyed in the world. With its long history of LGBT activism and annual Gay and Lesbian Mardi Gras festival, Sydney has been named one of the most gay-friendly cities in the world.

Same-sex marriage has been legal in Australia since 9 December 2017. Legislation to allow it, the Marriage Amendment Act 2017, passed the Australian Parliament on 7 December 2017 and received royal assent from Governor-General Peter Cosgrove the following day. The law came into effect on 9 December, immediately recognising overseas same-sex marriages. The first same-sex wedding under Australian law was held on 15 December 2017. The passage of the law followed a voluntary postal survey of all Australians, in which 61.6% of respondents supported legalisation of same-sex marriage.

Polygamy is the practice of having more than one spouse at the same time. Specifically, polygyny is the practice of one man taking more than one wife while polyandry is the practice of one woman taking more than one husband. Polygamy is a common marriage pattern in some parts of the world. In North America, polygamy has not been a culturally normative or legally recognized institution since the continent's colonization by Europeans.

<span class="mw-page-title-main">Current state of polygamy in the Latter Day Saint movement</span>

Joseph Smith, the founder of the Latter Day Saint movement, privately taught and practiced polygamy. After Smith's death in 1844, the church he established splintered into several competing groups. Disagreement over Smith's doctrine of "plural marriage" has been among the primary reasons for multiple church schisms.

Akin to Uganda, Republic of the Congo and the Central African Republic, Zambia is one of the few Christian nations that allows polygamous unions to be legally formed. Under Zambian law, polygamous unions may be contracted and they have been reported to be extremely widespread in the nation. Similar to most countries that provide polygamy as a form of marriage, the first wife must consent to the practice of polygamy before she marries her husband. If she declines, her husband will not be allowed to marry another woman while married to his current wife. According to a 2003 survey, 16% of marriages in Zambia are polygamous. While frequently more common in rural areas, the practice can also be found in more urban settings.

<span class="mw-page-title-main">Polygamy in the United Kingdom</span>

Polygamous marriages may not be performed in the United Kingdom, and if a polygamous marriage is performed, the already-married person may be guilty of the crime of bigamy under section 11 of the Matrimonial Causes Act 1973.

The legal status of polygamy varies widely around the world. Polygyny is legal in 58 out of nearly 200 sovereign states, the vast majority of them being Muslim-majority countries. Some countries that permit polygamy have restrictions, such as requiring the first wife to give her consent.

<span class="mw-page-title-main">LGBT rights in New South Wales</span> Human rights in Australia

Lesbian, gay, bisexual, and transgender (LGBT) persons in the Australian state of New South Wales have most of the same rights and responsibilities as heterosexual cisgender people.

Australia is one of the most LGBT-friendly countries in the world. In a 2013 Pew Research poll, 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth most supportive country in the survey behind Spain (88%), Germany (87%), and Canada and the Czech Republic. With a long history of LGBT rights activism and an annual three-week-long Mardi Gras festival, Sydney is considered one of the most gay-friendly cities in the world.

<span class="mw-page-title-main">LGBT history in Australia</span> History of LGBTQI people and rights in Australia

This article details the history of the LGBT rights movement in Australia, from the colonial era to the present day.

<span class="mw-page-title-main">Polygamy in New Zealand</span>

Polygamous marriages may not be performed in New Zealand. A married person who enters into another marriage in New Zealand is guilty of the crime of bigamy. Similar rules apply for civil unions, which have been legal in New Zealand since 2005. However, polygamous marriages legally performed in another country have limited recognition in New Zealand law, provided that no person involved was living in New Zealand at the time of the union.

<span class="mw-page-title-main">Marriage in Australia</span>

Marriage in Australia is regulated by the federal government, which is granted the power to make laws regarding marriage by section 51(xxi) of the constitution. The Marriage Act 1961 applies uniformly throughout Australia to the exclusion of all state laws on the subject.

Polygamy was outlawed in federal territories by the Edmunds Act, and there are laws against the practice in all 50 states, as well as the District of Columbia, Guam, and Puerto Rico. Because state laws exist, polygamy is not actively prosecuted at the federal level.

References

  1. ↑ "Rights charter is from 2009 BC | The Australian". Archived from the original on 12 September 2012. Retrieved 15 August 2020.
  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. 1 2 "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. 1 2 "Polyamory Action Lobby". Hansard: Australian Parliament House . 28 February 2013. Retrieved 1 October 2015.
  11. ↑ https://www.legislation.gov.au/Details/C2023C00056/
  12. ↑ Ghazel & Ghazel and Anor, 4 March 2016, retrieved 25 July 2021
  13. ↑ 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.
  14. ↑ Karen, D. (19 April 2016). "Potentially polygamous marriages recognised under Australian legislation". Armstrong Legal Family Law Blog. Retrieved 20 December 2016.
  15. ↑ Michael Klapdor (14 December 2016). "Polygamy, multiple relationships and welfare". Australian Parliament House . Retrieved 6 October 2017.
  16. ↑ "Aboriginal Marriages and Family Structures". Australian Law Reform Commission . 18 August 2010. Retrieved 17 September 2023.
  17. 1 2 "How common is polygamy in Australia? And how does it work?". SBS. 29 May 2012. Archived from the original on 20 October 2017. Retrieved 20 October 2017.
  18. ↑ "Muslim Leaders Call for Australia to Recognize Polygamy". November 2009.
  19. ↑ Australia: Polygamy should be legal, says sheikh
  20. ↑ "Legalise polygamous unions: Muslim leaders". The Age. 24 June 2008.
  21. ↑ June 26, Edward M. Gomez on; AM, 2008 at 12:00 (26 June 2008). "Polygamous marriages, in Australia?". World Views.{{cite web}}: CS1 maint: numeric names: authors list (link)
  22. ↑ "Polygamy - the right to put down women". NewsComAu. 26 June 2008.
  23. ↑ "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.
  24. ↑ "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.
  25. ↑ Cook, Michael (5 March 2013). "Taking same-sex marriage step by step" . Retrieved 1 October 2015.
  26. ↑ Feeney, Katherine (11 June 2015). "Does a polyamorous lifestyle reward followers with a better life?". WA Today. Retrieved 19 August 2015.
  27. ↑ Baird, Julia (30 June 2015). "The Drum talks with US sex educator Janet Hardy". ABC News . Retrieved 19 August 2015.
  28. ↑ Wra, Tyson (25 September 2015). "Free love in the 21st century: Why polyamory is taking off". News Ltd. Retrieved 1 October 2015.
  29. ↑ Perkins, Miki (8 September 2015). "Boomers with benefits: a free love revolution with no rings attached". The Age . Retrieved 1 October 2015.
  30. ↑ "Sydney Polyamory". Facebook . Retrieved 9 October 2017.
  31. ↑ "Poly Mardi Gras Float". Facebook . Retrieved 9 October 2017.
  32. ↑ "SecondWife.com - Muslim Polygamy Match Making Service". www.secondwife.com.
  33. ↑ "Secondwife.com website gaining popularity in Australia, founder says". SBS News. 11 September 2016. Retrieved 6 October 2017.
  34. ↑ Olding, Rachel (10 September 2016). "Secondwife.com site gaining traction in Australia, says UK founder". Sydney Morning Herald . Retrieved 6 October 2017.
  35. ↑ Jackson, Gabrielle (25 October 2013). "Monogamy or Monogamish". Hoopla. Archived from the original on 14 April 2015. Retrieved 8 October 2015.{{cite news}}: CS1 maint: bot: original URL status unknown (link)
  36. 1 2 Anderson, Ryan T. "Get ready for the throuples". National Review . Retrieved 6 October 2015.
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