Introduction
Q1: If I find out my spouse only married me for a visa or for money, can I get the marriage annulled for fraud?
A: No, not in Australia. Section 23B(1)(d)(i) of the Marriage Act 1961 reads 'fraud' very narrowly. It covers being tricked about who you were marrying or what the ceremony was, but not lies about your spouse's motives. Even a marriage entered purely for immigration or financial reasons stays legally valid. Reference: Marquis [2012] FamCA 137
Q2: If my partner is still married to someone else when we wed, does the court just void our marriage and let them off?
A: No. The Family Court will declare the marriage void, but it also has a duty to refer the matter to the Attorney-General because bigamy under s 94 of the Marriage Act 1961 is a federal crime carrying up to five years imprisonment. Reference: Hyun & Namgung [2012] FamCA 146
Q3: I genuinely thought my divorce was final before I remarried. Will that save me from criminal prosecution?
A: Not on its own. Bigamy turns on the physical fact of being married when the next ceremony takes place. Your subjective belief about a pending divorce won't stop a referral. Ticking 'Never Validly Married' on the Notice of Intended Marriage is also its own offence under s 104. Reference: Kirvan & Tomaras [2018] FamCA 171
What counts as "fraud" that makes a marriage void under Australian law?
Many people assume that any lie told before the wedding gives them grounds to undo the marriage, but Australian law draws this line very narrowly. The only kind of deception that voids a marriage is one that goes to who you actually married or what the ceremony actually was. Lies about motives, whether citizenship, money or romantic intentions, do not count.
The Marriage Act 1961 governs this. Section 23B(1)(d)(i) reads:
"...the consent of either of the parties was not a real consent because it was obtained by duress or fraud..."
The Australian courts have drawn a sharp line. Fraud only counts if it goes to the identity of the other party or to the nature of the ceremony itself. If you knew you were standing at a wedding and you knew who was standing next to you, your consent is treated as real. That stays true even if your partner lied about every other thing under the sun.
What this means in practice is that a marriage of convenience, where one party married purely for a visa or financial benefit, remains a fully valid marriage in Australia. The court is not asked to police whether a couple was genuinely in love. Its only job in a nullity application is to check whether the formal requirements of consent were met when the vows were exchanged. Deception about motives is legally distinct from fraud about identity.
Case Study: Marquis [2012] FamCA 137
The parties married in Europe in 2000. The husband returned to Australia and spent the next five years working to secure a visa for his wife, travelling back to Europe several times during that period. The wife finally arrived in Sydney in 2005, and the couple lived together for another five years before separating in 2010.
After the separation, the husband applied for a decree of nullity. He alleged that the wife had later admitted she only married him to obtain Australian citizenship, and argued this amounted to fraud and misrepresentation because he had believed the marriage was based on mutual love.
Outcome: Application dismissed. The judge accepted the husband was distressed but held that misrepresentation about motives does not meet the legal definition of fraud. There was no suggestion the husband was mistaken about his wife's identity or the nature of the ceremony itself, so the marriage remained valid.
"In summary, then, I conclude that the term 'fraud', as it appears in s 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage."
The practical effect is blunt. Australia will not annul your marriage because your spouse lied about loving you, lied about wanting children, or lied about needing only a visa. If your real complaint is about motive, you should be looking at property and parenting remedies under the Family Law Act 1975, not at annulment.
When does bigamy become a criminal offence in Australia?
The moment a person who is already legally married goes through a second marriage ceremony, the bigamy offence is complete. From that point the Family Court runs both tracks together: it declares the second marriage void and refers the matter to the Attorney-General for criminal prosecution.
The criminal provision is section 94 of the Marriage Act 1961:
"(1) A person who is married shall not go through a form or ceremony of marriage with any person. Penalty: Imprisonment for 5 years."
While section 94 defines the crime, section 23B handles the civil status: a marriage contracted when one party is already lawfully married to another person is void from the outset. The second union is treated as if it never legally existed, regardless of any decree.
The dual consequence catches many people off guard. When the Family Court finds bigamy during a nullity application, it grants the decree of nullity to clean up the parties' civil status. Then, because bigamy is a federal offence, the court has a recognised duty to refer the file to the Attorney-General or the Commonwealth Director of Public Prosecutions. Section 104 adds a separate offence for false statements made to a celebrant, so the same conduct can attract two distinct criminal charges. For a longer look at when an honest-mistake remarriage tips into criminal territory, see Accidentally Married Twice in Australia: Is It Bigamy?.
Case Study: Hyun & Namgung [2012] FamCA 146
The parties went through an Australian marriage ceremony together. The applicant later discovered that at the time of that ceremony, the respondent was still lawfully married to a third party in Korea. The Korean marriage had never been dissolved, so the respondent had no legal capacity to marry again under Australian law.
The applicant produced evidence of the subsisting Korean marriage and asked the court to declare the Australian ceremony a nullity. Australian criminal law applies strict liability to the physical fact of being married when the second ceremony occurs, so subjective explanations about the prior marriage carry little weight.
Outcome: Rees J granted the decree of nullity on the ground that the respondent was already lawfully married at the time of the ceremony. The court did not stop there: the file was referred to the Attorney-General because it appeared the respondent had committed bigamy.
"I am satisfied that at the time of the marriage between the applicant and the respondent the respondent was lawfully married to another person... I, therefore, pronounce a decree of nullity of the marriage between Ms Hyun and Mr Namgung. On the face of the matters before me, it would appear that a crime has occurred and that the respondent has committed bigamy and I refer the papers to the Attorney-General."
A subsisting earlier marriage automatically wipes out the second one and exposes you to up to five years in prison. The Family Court is not a passive recorder here; it will report you. A misunderstanding about a foreign divorce can move from a private family matter to a criminal file in a single hearing.
What if both parties knew the previous marriage wasn't dissolved?
If both spouses know the earlier marriage is still on foot and proceed anyway, the matter stops being a simple civil nullity question. The court treats shared knowledge as an aggravating factor and almost always refers the matter for criminal prosecution rather than letting it slide.
Section 104 of the Marriage Act 1961 punishes the lie that makes the wedding possible:
"A person shall not give a notice to an authorised celebrant under section 42, or sign a notice under section 42 after it has been given, if, to the knowledge of that person, the notice contains a false statement or an error or is defective."
This stacks on top of the bigamy offence in section 94. Bigamy itself carries up to five years imprisonment. The false statement on the Notice of Intended Marriage carries a separate penalty of up to six months imprisonment. The two can run together: one offence for the physical act of the second marriage, another for the paperwork fraud used to obtain it.
The strict liability nature of bigamy makes the second offence particularly dangerous for couples who hoped to plead an honest mistake. Under section 6.1 of the Criminal Code Act 1995, the prosecution does not need to prove you intended to break the law for s 94 — only that you were already married when the next ceremony took place. Add a knowing false statement on the Notice of Intended Marriage and any honest-mistake defence collapses.
Case Study: Kirvan & Tomaras [2018] FamCA 171
The wife had married her first husband overseas in 2015 and later moved to Australia on a student visa. She filed for divorce, but service delays meant her final divorce order was not made until 22 October 2017. In the meantime she began living with Mr Tomaras, and citing cultural pressure around their cohabitation, the couple married in mid-2017, several months before the wife's first marriage was legally dissolved. The court found both the wife and Mr Tomaras knew the divorce from her first husband was not yet final when they wed.
When they completed the paperwork for the marriage celebrant, the wife listed her status as 'Never Validly Married'. There was no evidence the celebrant had been told about the pending divorce proceedings or the existing first marriage. The judge also observed that the later nullity application looked like a tactical precursor to a visa application, designed to clean up the parties' status for the Department of Immigration.
Outcome: Berman J declared the marriage a nullity under s 23B because the wife was lawfully married to another person at the time of the ceremony. Because of the knowing misrepresentation and wilful disregard for the law, the court took the further step of referring the case papers to the Attorney-General, with the referral expressly covering both bigamy under s 94 and false statements under s 104.
"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... I consider that the conduct of the wife and the husband to be blatant in order to undergo a marriage ceremony in circumstances where they knew that it was not permissible to do so."
Two practical points fall out of this. Being uncertain about the exact date your divorce becomes absolute is no defence once you have signed the celebrant's paperwork. And if you knowingly tick 'Never Validly Married' while a divorce is still pending, that lie is its own federal offence — one the Family Court is duty-bound to report.
When is a marriage problem NOT fraud or bigamy?
The Marriage Act contains several saving provisions designed to protect couples who acted in good faith but ran into a procedural defect. Courts draw a sharp line between honest paperwork slip-ups and blatant attempts to flout Commonwealth law: the first gets rescued, the second gets prosecuted as fraud or bigamy.
Two saving provisions do most of the work. Section 48(3) keeps a marriage valid where the celebrant lacked authority, provided at least one party honestly believed the celebrant was authorised and both parties intended to be lawfully wedded. Section 113 governs second ceremonies for already-married couples, such as religious renewals of vows, and allows them so long as the couple follows the notification rules and shows the celebrant their existing marriage certificate. When these rules are missed by accident, the court treats the matter as a civil error to be corrected, not as a crime.
In Anouihl & Temke [2017] FamCA 325, a couple legally married since 2008 held a religious renewal of vows the following year. They missed the notification requirements in s 113(5), and the celebrant inadvertently registered the religious ceremony as a second legal marriage. When the duplicate registration came to light years later during divorce proceedings, the court declared the second registration invalid. Because the parties were already lawfully married to each other, this was a remediable administrative slip, not an act of bigamy.
In Brune & Cline [2018] FCWA 209, the celebrant's licence had expired five days before the wedding. The court still declared the marriage valid under the s 48(3) honest-belief provision. The husband had genuinely believed the pastor was authorised, and both parties had clearly intended to become spouses that day. The case shows how the law protects a couple's true intent over a celebrant's paperwork failure.
In Rahimi & Moradi [2023] FedCFamC1F 151, the wife tried to have her 2010 Fijian marriage declared void by asserting it had been a symbolic ceremony that was never meant to be registered. The court rejected this after reviewing an authentic Certificate of Marriage bearing the Fijian Registrar's seal. Because the ceremony had met every legal requirement at the time, the wife's later attempt to recharacterise it could not displace the official documentary evidence.
| Comparison | Kirvan & Tomaras [2018] | Brune & Cline [2018] |
|---|---|---|
| Nature of irregularity | Intentional remarriage before divorce final | Celebrant's licence had expired five days earlier |
| Party's state of mind | Wilful disregard and knowing misrepresentation | Honest belief in celebrant's authority |
| Statutory rescue | None available | Section 48(3) Marriage Act 1961 |
| Outcome | Void + referral to AG for s 94 and s 104 | Marriage valid and registered |
| Decisive factor | Deliberate deception of celebrant and state | Good-faith intention to be lawfully wedded |
Decisive factor: The two outcomes turn on intent. Where the parties acted in good faith and the irregularity was administrative, the saving provisions kicked in and protected the marriage. Where the parties knowingly misled the celebrant, no saving provision could help, and the court treated the conduct as criminal.
"Whilst the applicant does not concede the veracity of the Certificate of Marriage, in the absence of any evidence to the contrary, I am easily able to find on the balance of probabilities that the Certificate of Marriage is an authentic document... the parties were therefore lawfully married."
The boundary line is clear. The Australian system will not punish honest mistakes or paperwork failures where the parties genuinely tried to follow the law. The moment the court detects deliberate concealment or wilful disregard, however, the case stops being a family law dispute and becomes a criminal one.
Summary
The takeaway across these six cases is that Australian law separates the legal validity of a marriage from the sincerity of the relationship inside it. Saving provisions protect good-faith conduct. Criminal referrals follow deliberate deception. For more on the everyday risk of accidental remarriage during divorce, see Accidentally Married Twice in Australia: Is It Bigamy?.
Case lessons
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Motive deception does not void a marriage. Marquis confirmed that s 23B(1)(d)(i) fraud is limited to the identity of the other party or the nature of the ceremony, not the motives behind it. Lies about visa, money, or love do not entitle you to annulment.
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A subsisting prior marriage triggers automatic void status plus criminal referral. Hyun & Namgung confirmed that the Family Court has a federal duty to refer suspected bigamy to the Attorney-General once an undissolved prior marriage is found.
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Lying to the celebrant is a separate federal offence. Kirvan & Tomaras confirmed that knowingly false answers on the Notice of Intended Marriage attract their own charge under s 104, stacking on top of the bigamy referral under s 94.
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Honest procedural mistakes are rescued by saving provisions. Brune & Cline confirmed that an expired celebrant licence does not invalidate a marriage where the parties acted in good faith under s 48(3). The same principle protects accidental duplicate registrations under s 113.
Practical advice
| ✅ What to do | ❌ What NOT to do |
|---|---|
| Wait until your divorce order has legally taken effect before going through a new ceremony | Don't rely on the "lodged" status of a divorce application or a decree nisi as a green light to remarry |
| Disclose your full marital status, including any overseas marriage, on the Notice of Intended Marriage | Don't tick "Never Validly Married" if you have any subsisting prior marriage anywhere in the world |
| If your real complaint is about motive or character, ask a family lawyer about property, parenting, or spousal maintenance remedies | Don't expect a decree of nullity on grounds of a "sham marriage" — the court will refuse |
| Check your celebrant's current authorisation and follow the s 113 notification rules for renewal-of-vows ceremonies | Don't assume good faith covers every administrative defect, especially if you knew about a problem with the celebrant |
