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Family Law, Marriage

Marriage – Is a Second Marriage Valid?

A recent case in the Family Court of Australia considered the situation where a woman, Ms Kirvan, had married twice, and therefore whether the second marriage was valid.

Ms Kirvan initially married Mr D in 2015 while overseas. She then moved to Australia on a student visa in March 2016. While it appears the initial plan was for Mr D to follow Ms Kirvan to Australia, unfortunately their relationship broke down shortly thereafter and Mr D’s visa application was refused due to him being no longer in a spousal relationship with Ms Kirvan.

Ms Kirvan commenced proceedings to divorce Mr D, however, there was a delay in Mr D being served with the required Court documents, and so the divorce did not move ahead as quickly as Ms Kirvan had hoped.

Once in Australia, Ms Kirvan met and moved in with Mr Tomaras in about March 2017. Ms Kirvan and Mr Tomaras were concerned about the cultural integrity of their cohabitation in that they were living together but unmarried. They were aware that Ms Kirvan had not formally divorced from Mr D but felt that the “marriage was not valid any longer”. They therefore decided to marry.

The marriage took place in mid-2017, but Ms Kirvan’s divorce from Mr D was not granted by Court order until 22 October 2017.

Under Australian law, it is illegal to marry someone while already married to another person. Section 94 of the Marriage Act 1961 (Cth) provides “A person who is married shall not go through a form or ceremony of marriage with any person”, with a possible penalty of 5 years’ imprisonment. It is therefore a criminal offence and a person can be charged and be sentenced to jail if found guilty.

The Judge considered that Ms Kirvan’s marriage to Mr D was valid and recognised in Australia, despite having occurred in another country.

As a result, the Judge found that the marriage between Ms Kirvan and Mr Tomaras was not valid and declared that it was a nullity. The Judge also referred the matter to the relevant authorities so that they could prosecute Ms Kirvan and Ms Tomaras for their crimes if they chose to do so.

It is unclear whether Ms Kirvan and Mr Tomaras had actually separated or were still in a relationship and whether this was therefore an attempt to get in front of any immigration and visa issues that may have arisen as a result of their invalid marriage, particularly as Mr Tomaras considered that Ms Kirvan’s solicitor acted for both of them in the Court proceedings.

While divorce may seem like a mere formality after the breakdown of a relationship and quite minor in the context of property and parenting issues, it is important to ensure that you are formally divorced before marrying another person. It is not uncommon for people to remain married many years after their relationship has broken down. Divorce proceedings can take many months to come to a resolution, particularly if the parties have children together or the other party does not agree to the divorce. The passage of time can also create issues if the parties have fallen out of touch as the application will need to be served on the person’s husband or wife before it is considered by the Court. Further, once the Court considers the application and grants the divorce, the divorce will not become final until 1 month and 1 day after.

If you require assistance with a divorce application, we are able to assist. Please contact us to speak to someone about your matter.

Kirvan & Tomaras [2018] FamCA 171 (21 March 2018)

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