Introduction
Q1: If I remarried without knowing my divorce was not finalised, am I guilty of bigamy?
A: Yes, in most cases. Australian law treats the date the divorce order takes effect as the cut-off, and remarrying even one day too early can trigger a criminal referral. Reference: Kirvan & Tomaras [2018] FamCA 171
Q2: We just wanted a religious blessing on top of our civil marriage. Could that be bigamy?
A: It can be if the celebrant accidentally registers it as a fresh marriage. A renewal of vows or religious ceremony only stays safe when the celebrant is given written notice that you are already married. Reference: Anouihl & Temke [2017] FamCA 325
Q3: I had a symbolic ceremony overseas. Does that affect my later Australian marriage?
A: It can. If the overseas ceremony met that country's legal requirements, Australia may treat it as a real marriage, and a later Australian wedding can become bigamous. Reference: Rahimi & Moradi [2023] FedCFamC1F 151
What is bigamy under Australian law?
Bigamy is going through a marriage ceremony while you are already legally married to someone else. The law that controls this is the Marriage Act 1961 (Cth) section 94, and it carries a maximum penalty of 5 years imprisonment.
Section 94(1) is short and blunt:
A person who is married shall not go through a form or ceremony of marriage with any person.
The point of the law is to keep the public record honest. If you tell a celebrant you have never been married, or that your earlier marriage has ended when it has not, that itself is a separate offence under section 104 of the Marriage Act, carrying its own penalty of up to 6 months imprisonment or a fine.
On the civil side, section 23B says a marriage is void from the start if either party was already lawfully married at the time of the ceremony. The second marriage never had legal effect, even before a court formally declares it void.
A void marriage is of no effect in law. It is not a marriage at all irrespective of whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage.
Core Point: Bigamy in Australia is going through a marriage ceremony while a prior legal marriage still exists. The second marriage is void from day one, and the parties can face up to five years in prison.
Why does this matter even if I didn't know?
Because bigamy is what lawyers call a strict liability offence. The prosecution does not have to show you intended to break the law. They only have to show that you were already married when the second ceremony took place.
That has real practical fallout:
- Criminal referral is not optional. When a Family Court judge finds during a nullity application that a second marriage took place while the first was still on foot, the judge has a duty to refer the file to the Attorney-General or the Commonwealth Director of Public Prosecutions. The judge does not weigh whether you meant it.
- The second marriage is treated as if it never happened. That can disrupt spouse visas, Medicare and health insurance enrolments, partner-based government benefits, and the way assets pass under a will.
- A wrong answer on the Notice of Intended Marriage is its own crime. Even if the bigamy charge does not stick, signing the marriage notice with incorrect information about whether you have been married before can lead to a separate prosecution under section 104.
A wife discovered after her wedding that her husband was already lawfully married to someone else when the ceremony took place. She came to the Family Court asking for a decree of nullity so the marriage could be declared void.
The husband did not really dispute the underlying facts. He had been married before, and that earlier marriage had not been dissolved by the time he married the wife.
Outcome: The court declared the second marriage void from the start under section 23B. But the judge did not stop there. Because a bigamous ceremony had clearly taken place, the file was referred to the Attorney-General with a view to criminal proceedings against the husband. The civil nullity did not insulate him from the criminal side.
Key Point: Even unintentional bigamy carries heavy consequences, because Australian marriage law puts the accuracy of the public record above what either party privately believed about their earlier marriage.
How do courts handle different scenarios?
The court's tone depends a lot on whether you made a genuine, reasonable mistake or whether you knew the position and pressed on anyway.
Scenario 1: Remarried before the divorce order took effect
- Common Misconception: Once you have separated and lodged divorce papers, you are single enough to get married again.
- Legal Truth: You remain legally married until the precise date and time your divorce order takes effect, which is normally one month and one day after the divorce hearing.
It is difficult to view the wife's conduct and perhaps that of the husband as anything less than a wilful disregard of the requirement that she make full and frank disclosure in relation to her marital status.
The wife married her new partner in mid-2017. Her divorce from her first husband, however, was not granted until October 2017. When the issue surfaced, she argued that she and the new partner felt the first marriage had effectively ended long before the divorce order, so the timing was just paperwork.
The court was not persuaded. The wife knew she had been through an earlier marriage ceremony, knew the divorce was still pending, and signed the Notice of Intended Marriage anyway.
Outcome: The second marriage was declared void, and the file was referred to the Commonwealth Director of Public Prosecutions for potential bigamy charges.
Practical checklist:
- Do not book a wedding date until your divorce order is final.
- Check the exact date your divorce takes effect, not the date of the hearing.
- Give the new celebrant a copy of your divorce order before signing the Notice of Intended Marriage.
Scenario 2: The first ceremony was unusual, and you thought it didn't count
- Common Misconception: If the person who married you the first time was not properly licensed, that ceremony was never real, so you are free to marry again.
- Legal Truth: Under section 48(3) of the Marriage Act, a ceremony can still be valid if at least one of the parties believed the celebrant was authorised. That means the first marriage may be alive even if the celebrant's paperwork was not.
I conclude that the wife genuinely believed the Sheikh was lawfully authorised to solemnise the marriage and that the intent, form and ceremony of the marriage was sufficient to show a firm intention on the part of the husband and wife to become the lawfully wedded spouse of the other.
A Melbourne couple were married in a ceremony conducted by a Sheikh according to Islamic procedure. Years later the husband wanted out and argued the marriage had never been legal because the Sheikh was not registered as an authorised celebrant and the formal notice of intended marriage had not been lodged.
The wife disagreed. From her side, the ceremony had every hallmark of a real wedding. She believed the Sheikh was authorised, she believed she was becoming the husband's wife, and she had lived as his spouse for years.
Outcome: The court applied section 48(3) and held the first marriage valid because the wife genuinely believed the celebrant was authorised. The practical takeaway: if the husband had gone on to marry someone else without divorcing the wife, that second ceremony would have been bigamous.
Scenario 3: Technical errors by the celebrant
- Common Misconception: If the celebrant's licence had expired or the paperwork was wrong, the marriage is automatically void.
- Legal Truth: The law will often save a marriage where the only problem is a technical defect, as long as the parties intended to marry and at least one of them believed the celebrant was authorised.
The parties intended to marry, believed the celebrant was authorised, and the ceremony in every respect was conducted as a marriage. The defect in the celebrant's authority alone does not strip the marriage of legal effect.
A Western Australian couple were married by a pastor. Unknown to either of them, the pastor's wedding licence had lapsed at the time of the ceremony. Years later the wife needed legal recognition of the marriage so she could access employment-related spousal benefits, so the couple asked the court to declare the marriage valid.
The court applied section 48(3) again. Both parties believed the pastor was authorised. The ceremony followed the usual form of a wedding. Their intention to marry was clear.
Outcome: The marriage was declared valid despite the celebrant's expired licence. Once again, the consequence is straightforward: if either party had remarried in the meantime, that later wedding would have been a bigamous one.
| Comparison | Kirvan & Tomaras [2018] | Oltman & Harper (No. 2) [2010] | Brune & Cline [2018] | Anouihl & Temke [2017] |
|---|---|---|---|---|
| Central issue | Remarried before divorce was final | Unauthorised religious celebrant | Pastor's licence had lapsed | Renewal of vows registered as a second marriage |
| Did the court save the first marriage? | Not applicable (second ceremony void) | Yes, saved by s 48(3) | Yes, saved by s 48(3) | Original marriage still valid; second declared void |
| Risk of bigamy if remarried | High: criminal referral made | High: first marriage still alive | High: first marriage still alive | Moderate: depends on intent at the second ceremony |
For more on getting the divorce timeline right before any of this becomes a problem, see Joint Divorce Process in Australia and Sole Divorce Process in Australia. If you are unwinding finances after a previous marriage that is being annulled, Divorce Property Settlement in Australia explains how property is split when the marriage is undone.
Summary
Bigamy in Australia is not about how you felt about your earlier marriage. It is about whether that marriage was still legally on foot the moment the second ceremony took place. The Marriage Act 1961 treats the second wedding as void from the start under section 23B, and exposes the parties to up to five years in prison under section 94, even when the mistake was honest.
The cases sit on two ends of the same rule. Where someone remarried before their divorce had taken effect, as in Kirvan & Tomaras, the court has voided the second marriage and referred the matter for criminal prosecution. Where one party genuinely believed the celebrant was authorised, as in Oltman & Harper and Brune & Cline, the first marriage was kept alive by section 48(3), which means any later wedding without a divorce would be bigamous.
The safe path is dull but reliable. Wait for your divorce order to take effect. Hand the new celebrant a copy of that order. If a previous ceremony overseas might count as legal there, get a written opinion before assuming it does not. And if you suspect you have already remarried too early, ask for legal advice and apply for a decree of nullity rather than hope it goes away.
