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Divorce - Bigamy


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Michelle McDermott

Bigamy is a strict liability federal offence that carries a maximum penalty of 5 years imprisonment.

A person has committed the act of Bigamy in circumstances where that person is lawfully married at the time they go through a marriage ceremony with any person. That is, if Person A is lawfully married to Person B, Person A cannot go through a marriage ceremony with Person C.

A defence to the act of Bigamy is that Person A believed that Person B was dead at the time they went through a marriage ceremony with Person C, or that Person B has been absent from Person A for at least 7 years prior to the marriage ceremony with Person C that they had reasonable ground for believing Person B was dead. In this scenario, Person C may also be guilty of Bigamy if they knew, or reasonably believed Person A was legally married to Person B at the time of the marriage ceremony between Person A and C.

Marriage in Australia is defined as the union of 2 people to the exclusion of all others, voluntarily entered into for life. There are a number of formalities that need to occur for a marriage to be solemnised in Australia.

Foreign Marriages are usually also recognised in Australia. However, there are a number of limited exceptions to the default position, being that at the time the marriage was entered into:

  • Either party to the marriage was married to another person;
  • One or both of the parties to the marriage was not at marriage age in Australia (usually 18);
  • The parties to the marriage were in a prohibited relationship in Australia (being between an ancestor and a descendent or between siblings); or
  • The consent of either of the parties to the marriage was not real consent.

If any of the above exceptions exist, the marriage is not recognisable in Australia.

To avoid committing the offence of Bigamy, you must have a final divorce Order before re-marrying. In Australia, a final divorce order is made one month and one day after the divorce is granted. You cannot marry during that one month and one day period.

If a person discovers that they have committed the act of Bigamy after the second marriage ceremony, a Declaration of Nullity is needed to void the second marriage. Being lawfully married to another person at the time of a marriage ceremony is grounds for a Declaration of Nullity. However, the Family Court Judge may refer the Bigamy offence to the Attorney General for investigation about the breach of the Federal law.

There is no minimum wait period after receiving a Declaration of Nullity to marry another person.



where to next?

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Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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