Is a Polygamous Marriage Recognised for a Spouse Visa?

Why is a polygamous marriage not recognised for a spouse visa?

A polygamous marriage is not recognised for a spouse visa because Australian law allows a person only one valid marriage at a time. Under Part VA of the Marriage Act 1961, a marriage solemnised overseas is not recognised if either party was already married to someone else when it took place, even where the country of marriage allows more than one spouse. A spouse visa depends on a valid marriage, so a later polygamous marriage cannot be its basis.

Can the first wife in a polygamous marriage get a spouse visa?

The first wife in a polygamous marriage faces serious difficulty getting a spouse visa, even though her marriage may be legally valid. Section 5F of the Migration Act 1958 requires the couple to have a mutual commitment to a shared life as spouses to the exclusion of all others. Where the husband has another current spouse, the Department is unlikely to be satisfied that this requirement is met. Our article on the partner visa nature of commitment explains how the Department assesses this.

Can a polygamous couple apply as de facto partners instead?

A polygamous couple generally cannot apply as de facto partners instead, because a de facto relationship under section 5CB of the Migration Act 1958 also requires a commitment to a shared life to the exclusion of all others. The de facto pathway is not a way around the exclusivity requirement. Our article on de facto partner visas explains the de facto test in full.

What if an earlier marriage has not been formally ended?

An earlier marriage that has not been formally ended can stop a later marriage from being valid in Australia, even where the earlier relationship finished long ago. The earlier marriage must be ended by a divorce recognised in Australia or by the death of the former spouse. Where a person is separated but still legally married, a partner visa may in some cases be possible on a de facto basis, as our article on a partner visa while still married explains.

Must a previous marriage be disclosed in a spouse visa application?

A previous marriage must be disclosed in a spouse visa application, together with the evidence of how it ended. The Department checks earlier relationships against earlier visa applications, and failing to disclose a current or past spouse can engage PIC 4020 for false or misleading information. Our articles on previous relationships and PIC 4020 explain the risks. Disclosure also protects the applicant later, because inconsistencies between this application and future citizenship or visa applications can be raised years afterwards.

How does My Migration Lawyers advise on spouse visas involving more than one marriage?

My Migration Lawyers advises couples where more than one marriage appears in either partner's history by establishing first, from the documents, which marriages are legally current and which have ended. The firm then advises whether a spouse visa, a de facto application or a fresh marriage after a divorce is legally available, and what must be disclosed. Couples with a complex marriage history can raise it with our partner visa lawyers before any application is lodged.