Commonwealth Numbered Acts

FAMILY LAW ACT 1975 No. 53 of 1975 - SECT 104

104. (1) In this section-

''applicant'', in relation to the dissolution or annulment of a marriage,
means the party at whose instance the dissolution or annulment was effected;

''marriage'' includes a purported marriage that is void;

''overseas country'' means a country, or part of a country, outside Australia;

''relevant date'', in relation to a dissolution or annulment of a marriage,
means the date of the institution of the proceedings that resulted in the
dissolution or annulment;

''respondent'', in relation to the dissolution or annulment of a marriage,
means a party to the marriage not being the party at whose instance the
dissolution or annulment was effected.

(2) For the purposes of this section, a person who is a national of a country
of which an overseas country forms part shall be deemed to be a national of
that overseas country.

(3) A dissolution or annulment of a marriage effected in accordance with the
law of an overseas country shall be recognized as valid in Australia where-

   (a)  the respondent was ordinarily resident in the overseas country at the
        relevant date;

   (b)  the applicant was ordinarily resident in the overseas country at the
        relevant date and either-

        (i)    the ordinary residence of the applicant had continued for not
               less than 1 year immediately before the relevant date; or

        (ii)   the last place of cohabitation of the parties to the marriage
               was in that country;

   (c)  the applicant or the respondent was domiciled in the overseas country
        at the relevant date;

   (d)  the respondent was a national of the overseas country at the relevant
        date;

   (e)  the applicant was a national of the overseas country at the relevant
        date and either-

        (i)    the applicant was ordinarily resident in that country at that
               date; or

        (ii)   the applicant had been ordinarily resident in that country for
               a continuous period of 1 year falling, at least in part, within
               the 2 years immediately before the relevant date; or

   (f)  the applicant was a national of, and present in, the overseas country
        at the relevant date and the last place of cohabitation of the parties
        to the marriage was in an overseas country the law of which, at the
        relevant date, did not provide for dissolution of marriage or
        annulment of marriage, as the case may be.

(4) A dissolution or annulment of a marriage shall not be recognized as valid
by virtue of sub-section (3) where-

   (a)  under the common law rules of private international law, recognition
        of its validity would be refused on the ground that a party to the
        marriage had been denied natural justice or that the dissolution or
        annulment was obtained by fraud; or

   (b)  recognition would manifestly be contrary to public policy.

(5) Any dissolution or annulment of a marriage that would be recognized as
valid under the common law rules of private international law but to which
none of the preceding provisions of this section applies shall be recognized
as valid in Australia, and the operation of this sub-section shall not be
limited by any implication from those provisions.

(6) Notwithstanding anything contained in this section, the annulment in
accordance with the law of an overseas country of a marriage solemnized under
Part V of the Marriage Act 1961 or of that Act as amended, being an annulment
on the ground only of non-compliance with the formalities prescribed by the
law of the country in which the marriage was solemnized, shall not be
recognized as valid in Australia.

(7) For the purposes of this section, a court in Australia, in considering the
validity of a dissolution or annulment effected under the law of an
overseas country, may treat as proved any facts found by a court of the
overseas country or otherwise established for the purposes of the law of the
overseas country.

(8) For the purposes of the preceding provisions of this section but without
limiting the operation of those provisions, a dissolution or annulment of a
marriage shall be deemed to have been effected in accordance with the law of
an overseas country if it was effected in another overseas country in
circumstances in which, at the relevant date, it would have been recognized as
valid by the law of the first-mentioned overseas country.

(9) Where a dissolution or annulment of a marriage is to be recognized as
valid in accordance with this section, the capacity of a party to that
marriage to re-marry in accordance with the law of Australia is not affected
by the fact that the validity of the dissolution or annulment is not
recognized under the law of some other country.

(10) The preceding provisions of this section apply in relation to
dissolutions and annulments effected whether by decree, legislation or
otherwise, whether before or after the commencement of this Act, and, for the
purposes of this section, any decree, legislation or other process by which it
is established that a purported marriage was or is to become void shall be
deemed to be an annulment of the marriage.