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It is common for married couples to renew their vows in a second ceremony but what isn’t common is for the second ceremony to be considered and formally registered as a marriage. This was the case in Anouihl & Temke [2017] FamCA 325 whereby the parties religious ceremony with the intended purpose of renewing their vows, was inadvertently registered as a legally binding marriage.

The parties to this case were initially married in a civil ceremony conducted in 2008 but then participated in a religious marriage pursuant to the appropriate rites in 2009. An application for divorce was filed by the husband following the required separation period which brought light to the fact that the second “marriage” had been registered.

The Legislation

Section 11, of the Marriage Act 1961 (Cth) outlines the statutory requirements as to second marriage ceremonies and their accessibility to married couples. However, the parties in this case did not fulfil the necessary procedural requirements set by the legislation.

The legislation states that no 2 people already married will be stopped from partaking in a religious ceremony of marriage with each other where those persons have:

  1. Produce to the person whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and
  2. furnished to that person a statement in writing, signed by them and witnessed by that person, that:
    • they have previously gone through a marriage ceremony with each other;
    • they are the parties in the certificate of marriage produced; and
    • they have no reason to believe that they are not legally married to each other or that the marriage would not be valid in Australia.

The wife in this matter said that leading up to the religious ceremony she and her husband had informed the celebrant that there was an earlier marriage but these verbal exchanges were not enough to fulfil the legislative requirements.

In essence of this, the court has the power under s 113 of the Family Law Act 1975 to provide a declaration as to the validity of a marriage as outlined in s 4(1)(b) of the Family Law Act 1975. The husband filed an application with the court in 2017 seeking a declaration that the marriage in 2009 was not a valid marriage. The wife supported this order and this power of the court was used as justified by the parties demonstration that “there was a satisfactory reason for making the requested declaration and that the declaration was warranted”.