If you were to do some research into marriage customs and laws around the world, you will discover that there are several where being married to more than one person is perfectly legal, and indeed, part of the tradition of that country, culture, or religion. Known, as polygamy or bigamy, under our criminal law, this practice is not legal in Australia and is a criminal offence under the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

This Act changed the definition of bigamy laws to refer to the marriage of two people, whereas the previous law referred to a man and a woman. The 2017 Act altered the definition to include marriages between two people of the same sex which became legal in Australia as part of the same legislation.

Declaration Before Marriage

Before someone gets married they must complete a declaration that there is no legal impediment to the marriage taking place. Upon signing this declaration the individual is agreeing to the following:

• They are not already married to someone else
• Their relationship is not prohibited
• They and the person they are marrying are the legal age to be married
• The person they are marrying is not a close relative (child, adopted child, grandchild, sibling, parent, grandparent)
• There are no other legal impediments to the marriage

Penalties For Bigamy

The current maximum sentence for committing bigamy is five years. This may vary between states, with one example being New South Wales where the penalty rises to seven years. A point to note is whilst many people get married unaware their spouse is already married, others do so in the full knowledge that they are. This itself is an offence and it too carries a maximum prison sentence of five years.

Defences Against Bigamy

Some legal defences can be used by someone charged with bigamy. These are

• Genuine Mistake: This is where the decedent genuinely believed that their ex-spouse was deceased.
• Missing Presumed Dead: Ex-spouse has been absent for a long time and the circumstances lead to the reasonable conclusion that they had died.
• 7 Year Rule: Spouse has been missing for at least 7 years, and the accused had no reasonable belief that they were still alive.

Overseas Marriages

We mentioned in the introduction overseas cultures and laws, and so the question which might be raised is can someone with more than one spouse in another country, legally marry in Australia. For a start, it is difficult for authorities in Australia to determine for sure the marital status of someone who married in another country. What we mean is that nations do not normally share that kind of information, but it does happen.

So, if someone from overseas entered false information into the pre-marriage declaration, stated that they had never married previously, but this was discovered, and their first spouse was still alive with no divorce being recorded, they could be charged with bigamy under Australian law. As such the marriage in Australia is likely to be nullified if has already taken place.

Marriage Vs De Facto Relationship

One final point is that whilst being in a de facto relationship affords you several rights within family law, no law states that you cannot be in multiple de facto relationships. Whilst being in such a scenario would almost certainly present multiple practical and financial complications, one issue that would not arise is being charged with the criminal offence of bigamy.