Could a common-law relationship make a bigamist case?

April 27, 2009 7:37 PM

Does being in a de-facto / common-law relationship while waiting for a pending divorce make me grounds for bigamy under Australian law?

Would it be illegal for a person to enter into a defacto or common law relationship with another person while being married and waiting for a divorce?

posted by psyward to law & government (7 comments total)

No. Note: I have absolutely no cite for this, only my personal experience.
posted by different at 7:49 PM on April 27

Only if you go through a wedding ceremony.
posted by b33j at 7:49 PM on April 27

from memory, you don't attain de-facto status until you've passed 24 months of cohabitation in a marriage-like relationship.

so you don't so much "enter into" a defacto or common law relationship. better put, you enter into a relationship which becomes defacto or common law after the 24 months of cohabitation have passed.

i am not a lawyer, i am not your lawyer, may vary from jurisdiction to jurisdiction, and it's been a while since i studied family law.
posted by UbuRoivas at 7:51 PM on April 27

Thanks b33j, was still googling for that!

Common-law marriage is legally recognised as a marriage BUT there has been no marriage ceremony. Therefore although the partners (after a time, and depending on the state, and depending on the recently changed laws which are yet to be properly tested in court) have the legal rights of married partners, they are not in fact married. And it's that getting married, while still being married to someone else, that makes you a bigamist (as per the details in the link b33j provided).

Anecdotally, half the people I know would be breaking the law if this was illegal. It aint.
posted by different at 7:54 PM on April 27

First off, I am not a lawyer, etc etc.

The Marriage Act says this;

(1) A person who is married shall not go through a form or ceremony of marriage with any person.

(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place.

Going by this, the answer to your question seems to be no. The law seems to suggest that you're only a bigamist if you're married and undertake a new marriage. Far as I can tell, defacto relationships don't appear to be covered by the marriage Act (in fact, I think they're deemed to be common law arrangements) so going only on this, I don't think entering into a defacto releationship would be considered to be the same thing as entering into an actual marriage as defined by the marriage act.
posted by Effigy2000 at 7:58 PM on April 27

Section 94 of the Marriage Act 1961 (Cth) says that "a person who is married shall not go through a form or ceremony of marriage with any person." Given that de-facto relationships are by definition those without a form or ceremony, you would seem to be in the clear but IANAL.
posted by Joe in Australia at 7:58 PM on April 27

Thank you all for your replies.

Your interpretations of the law coincide with what I had originally though. However, I had to ask since I may have been missing some minor detail in the information I already found.
posted by psyward at 8:55 PM on April 27