Is Polygamy a Crime in Australia?

There are many nations where it is perfectly legal to marry more than one spouse, normally more than one wife.

These countries include Afghanistan, Algeria, Bahrain, Bangladesh, Bhutan, Brunei, Cameroon, Chad, Central African Republic, Comoros, Congo, Djibouti, Egypt, Gabon, The Gambia, India, Indonesia, Iran, Kenya, Kuwait, Libya, Maldives, Mauritania, Morocco, Myanmar, Oman, Pakistan, Qatar, Saudi Arabia, Senegal, Singapore, Somalia, Sri Lanka, Sudan, Tanzania, Togo, Uganda, United Arab Emirates, Yemen and Zambia, Palestine, Iraq and Syria (except Kurdish-controlled areas).

The practise of polygamy is also common amongst members of a number of other groups including Mormons in the United States and certain Indigenous Australian communities.

However, it is normally a criminal offence in Australia to marry a person when already married to another.

This is called the crime of bigamy.

The crime of bigamy

In New South Wales, section 92 of the Crimes Act 1900 makes it an offence punishable by a maximum penalty of seven years’ imprisonment to marry a person whilst already married to another. This is known as bigamy.

However, a defendant is not guilty if they are able to establish – on the balance of probabilities – that their first spouse was continually absent for seven years, or was continually absent from New South Wales for at least five years and presumed dead.

A person who marries another knowing that other person is already married is guilty of participating in bigamy, which is a crime under section 93 of the Act which attracts a maximum penalty of five years in prison.

Section 94 of the Marriage Act 1961 (Cth) applies across Australia and essentially mirrors the above sections, prescribing a maximum penalty of five years imprisonment for the offence of bigamy.

Polygamous marriages are recognised in certain situations

Part VA of the Marriage Act provides that overseas marriages are recognised in Australia, subject to a number of exceptions, including marriages that were non-consensual due to fraud, duress or mistaken identity, were incestuous or which involved a person under the age of 16 years.

Significantly, section 6 of that Act states that “a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage”.

This means polygamous marriages entered in countries where they are legal are recognised in Australia. However, it does not mean a person who is married to one or more people in one of those countries can come to Australia and enter into a second marriage here. Similar laws apply in the United Kingdom and New Zealand.

Is adultery a crime?

It is legal in Australia to have one or more de facto partners in addition to a spouse, and to commit adultery – which is to have sexual relations with someone other than a person’s spouse.

However, family lawyers warn that ‘marital affairs’ can have adverse consequences when it comes to the division of property, and even the contact and residence of children.