In the recent case of Eldaleh  FamCA 1103 (21 December 2016), the 30 year old applicant got married in the Middle East in mid-2016 with “Ms Eldaleh”, his purported wife, who was then 16 years of age.
The couple are now in Australia, and the “wife”, now 17, is pregnant and due to give birth in mid-2017. Mr Eldaleh was seeking a declaration from the court that his Middle Eastern marriage was valid pursuant to s 88D of the Marriage Act 1961 (Cth) (the “Act”).
A purported marriage of a 16-year old in Australia under local law is not valid, under s 11 of the Act, which sets marriageable age as 18 years. There is an exception in the case of someone between 16 and 18 years, where an application may be made to an Australian judicial officer for permission, pursuant to s 12 of the Act. But unless such an application has been approved, a 16 year old may not be lawfully married in Australia. As such, according to the Court, no mechanism is available under the Act by which the Court can validate the extant marriage between the applicant and Ms Eldaleh that took place in accordance with the relevant law in the Middle East.
The Act states rules for recognition in Australia of marriages entered into overseas, under s 88D of the Act – Part VA. The general rule, under s 88D(1), is that “a marriage to which this Part applies shall be recognised in Australia as valid.” A marriage conducted in Middle East under their relevant laws would in some cases be regarded as a marriage. Section 88D, however, sets out a number of circumstances in which such marriages are not to be recognised. One such circumstance is where, under s 88D(2)(b), one of the parties was, at the time of the marriage, domiciled in Australia-either of the parties was not of marriageable age within the meaning of Part II.
The concept of “domicile” in broad terms addresses the question as to which country a person “calls home”. Here it seemed clear that Mr Eldaleh was domiciled in Australia. As a result, his purported marriage to a 16 year old in the Middle East could not be recognised as a valid marriage in Australia.
Justice McClelland denied the application for a declaration of validity of their marriage on the basis that it was fundamentally inconsistent with the requirements for a valid marriage under the Act.