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Foreign Marriage declared invalid by Family Court due to One Party being under Age


In the case of Eldaleh (2016) a Judge of the Family Court of Australia (Family Court) heard an application filed by Mr Eldaleh who was seeking a declaration that his marriage to Ms Eldaleh which took place in the Middle East in 2016, was a valid marriage pursuant to Section 88D of the Marriage Act 1961 (Cth) (the Marriage Act).

At the time of the marriage, Mr Eldaleh was about 30 years of age and Ms Eldaleh was 16 years of age. By the time that the case was heard by the Family Court, Ms Eldaleh was 17 years old and expecting their first child.

The Law - the Marriage Act

Section 88D of the Marriage Act deals with the recognition of foreign marriage. The Family Court considered section 88D(2) which provides that a marriage will not be recognised as valid if one of the parties to the marriage was:

(a)       domiciled in Australia at the time of the marriage; and

(b)       either of the parties was not of marriageable age (that is, 18 years).

Family Court’s Decision

The Court found that pursuant to the Marriage Act, the marriage was invalid because even though the marriage took place in the Middle East, Mr Eldaleh was domiciled in Australia at the time and Ms Eldaleh was under 18 years of age.

The Court did consider Section 12 of the Marriage Act which provides that in certain circumstances, a court may authorise the marriage of a person under 18 years of age. That part of the Marriage Act provides that a person who has attained the age of 16 years, may apply to a court for an order authorising that person to marry a person of marriageable age, and a court can make such an order, only if, the Judge is of the view that there is something in the circumstances of the case that is so exceptional and unusual so as to justify the making of the order. However this section of the Marriage Act was of no help to Mr Eldaleh as the Family Court found that this section was intended for applicants of future proposed marriages, and could not be used retrospectively to try and authorise a marriage that had already taken place.

Therefore, in summary the Family Court found that it could not declare the marriage as valid and the application of Mr Eldaleh was dismissed.

However this case does not appear to deal with whether the overseas marriage was a valid marriage.  This may have some bearing on the outcome of the question if the matter is a question to be raised in the future.  We are happy to provide advice in relation to this facet of the marriage.

If you are faced with a similar situation or are unsure as to whether your marriage is a valid marriage under the Marriage Act, please do not hesitate to contact Richard Watson Family Law Solicitor or Shereen Da Gloria his assistant to discuss your concerns and give you peace of mind in relation to this very important aspect of marriage.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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