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MARRIAGE AMENDMENT ACT 1985 No. 7, 1985 - SECT 23

MARRIAGE AMENDMENT ACT 1985 No. 7, 1985 - SECT 23

23. After Part V of the Principal Act the following Part is inserted:
                 "PART  VA-RECOGNITION  OF  FOREIGN  MARRIAGES
Object of Part

"88A. The object of this Part is to give effect to Chapter II of the
Convention on Celebration and Recognition of the Validity of Marriages signed
at The Hague on 14 March 1978. Interpretation

"88B. (1) In this Part, unless the contrary intention appears-
'Australia' includes the external Territories;
'local law', in relation to a marriage solemnized in a foreign country, means
the law in force in the foreign country or in that part of the foreign country
in which the marriage was solemnized.



"(2) A marriage shall be taken, for the purposes of this Part, to have been
solemnized in a foreign country by or in the presence of a diplomatic or
consular officer of another foreign country if the marriage was solemnized in
the first-mentioned foreign country by or in the presence of a person who was
recognized by the government of that country as a diplomatic or consular
representative of the other foreign country.

"(3) In this Part, a reference to a marriage includes a reference to a
purported marriage that is void or voidable but does not include a reference
to a marriage solemnized under Part V. Application of Part

"88C. (1) This Part applies to and in relation to every marriage solemnized,
whether before or after the commencement of this Part, in a foreign country
where-

   (a)  under the local law, the marriage was, at the time when it was
        solemnized, recognized as valid; or

   (b)  if the marriage was solemnized by or in the presence of a diplomatic
        or consular officer of another foreign country-

        (i)    under the law of that other foreign country, the marriage was,
               at the time when it was solemnized, recognized as valid; and

        (ii)   at the time when it was solemnized, the solemnization of the
               marriage was not prohibited by the local law.



"(2) Where a marriage (not being a marriage referred to in sub-section (1))
that was solemnized, whether before or after the commencement of this Part, in
a foreign country-

   (a)  is, at any time in relation to which the validity of the marriage
        falls to be determined, recognized as valid under the local law; or

   (b)  if the marriage was solemnized by or in the presence of a diplomatic
        or consular officer of another foreign country and, at the time when
        it was solemnized, the solemnization of the marriage was not
        prohibited by the local law-is, at any time in relation to which the
        validity of the marriage falls to be determined, recognized as valid
        under the law of that other foreign country, this Part applies to and
        in relation to the marriage from and including that time. Validity of
        marriages

"88D. (1) Subject to this section, a marriage to which this Part applies shall
be recognized in Australia as valid.

"(2) A marriage to which this Part applies shall not be recognized as valid in
accordance with sub-section (1) if-

   (a)  either of the parties was, at the time of the marriage, a party to a
        marriage with some other person and the last-mentioned marriage was,
        at that time, recognized in Australia as valid;

   (b)  where one of the parties was, at the time of the marriage, domiciled
        in Australia-either of the parties was not of marriageable age within
        the meaning of Part II;

   (c)  the parties are within a prohibited relationship within the meaning of
        section 23B; or

   (d)  the consent of either of the parties was not a real consent for a
        reason set out in sub-paragraph 23B (1) (d) (i), (ii) or (iii).



"(3) Where neither of the parties to a marriage to which this Part applies
was, at the time of the marriage, domiciled in Australia, the marriage shall
not be recognized as valid in accordance with sub-section (1) at any time
while the female party is under the age of 14 years or the male party is under
the age of 16 years.

"(4) A marriage solemnized in a foreign country, being a marriage to which
this Part applies, shall not be recognized as valid in accordance with
sub-section (1) at any time while the marriage is voidable-

   (a)  except in a case to which paragraph (b) applies-under the local law;
        or

   (b)  if the marriage was solemnized in a foreign country by or in the
        presence of a diplomatic or consular officer of another foreign
        country-under the law of that other foreign country.

"(5) Notwithstanding any other provision of this Part, where-

   (a)  a marriage (in this sub-section referred to as the 'initial marriage')
        has, whether before or after the commencement of this Part, been
        solemnized in a foreign country;

   (b)  at the time of the solemnization of the initial marriage, that
        marriage was not recognized in Australia as valid;

   (c)  after the solemnization of the initial marriage, and whether before or
        after the commencement of this Part, either party to that marriage
        entered into another marriage (in this sub-section referred to as the
        'subsequent marriage'); and

   (d)  at the time when the subsequent marriage was solemnized-

        (i)    the subsequent marriage was recognized in Australia as valid;
               and

        (ii)   the initial marriage was not recognized in Australia as valid,
               the initial marriage shall not be recognized at any time in
               Australia as valid. Validity of certain marriages not affected
               by this Part

"88E. (1) Subject to sub-section (2), a marriage solemnized in a foreign
country that would be recognized as valid under the common law rules of
private international law but is not required by the provisions of this Part
apart from this sub-section to be recognized as valid shall be recognized in
Australia as valid, and the operation of this sub-section shall not be limited
by any implication arising from any other provision of this Part.

"(2) Notwithstanding sub-section (1), a marriage of a person domiciled in
Australia, being a marriage solemnized in a foreign country, shall not be
recognized in Australia as valid if, at the time of the marriage, either party
to the marriage was not of marriageable age within the meaning of Part II.

"(3) Where a marriage solemnized in a foreign country is not required by
virtue of this Part to be recognized in Australia as valid, this Part shall
not be taken to limit or exclude the operation of a provision of any other law
of the Commonwealth, or of a law of a State or Territory, that provides,
expressly or impliedly, for such a marriage to be recognized as a valid
marriage for the purposes of the law in which the provision is included.

"(4) This Part shall not be taken to limit or exclude the operation of a
provision of any other law of the Commonwealth, or of a law of a State or
Territory, that deems a union in the nature of a marriage to be a marriage for
the purposes of the law in which the provision is included. Incidental
determination of recognition of certain foreign marriages

"88F. Notwithstanding any other law, the question whether a marriage
solemnized in a foreign country is to be recognized in Australia as valid
shall be determined in accordance with the provisions of this Part, whether or
not the determination of the question is incidental to the determination of
another question. Evidence

"88G. (1) A document purporting to be either the original or a certified copy
of a certificate, entry or record of a marriage alleged to have been
solemnized in, or under the law of, a foreign country and purporting to have
been issued by-

   (a)  in the case of a marriage alleged to have been solemnized in a foreign
        country-an authority of that country or of that part of the country in
        which the marriage was allegedly solemnized; or

   (b)  in the case of a marriage alleged to have been solemnized under the
        law of a foreign country-an authority of that country, is, for all
        purposes, prima facie evidence of the facts stated in the document and
        of the validity of the marriage to which the document relates.

"(2) Sub-section (1) does not apply to or in relation to a document if it is
proved that the authority of the foreign country or of the part of a foreign
country by which the document purports to have been issued was not, at the
time of issue, a competent authority.

"(3) In sub-section (2), 'competent authority' means-

   (a)  in relation to a foreign country-

        (i)    any authority that is prescribed in relation to that country by
               regulations made for the purposes of this paragraph; or

        (ii)   any other authority that is competent, under the law in force
               in that country, to issue the original or a certified copy of a
               certificate, entry or record of a marriage solemnized in, or
               under the law of, that country; and

   (b)  in relation to a part of a foreign country-

        (i)    any authority that is prescribed in relation to that part of
               that country by regulations made for the purposes of this
               paragraph; or

        (ii)   any other authority that is competent, under the law in force
               in that part of that country, to issue the original or a
               certified copy of a certificate, entry or record of a marriage
               solemnized in that part of that country.".