Marriage Act 1961

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

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.

For strict liability, see section 6.1 of the Criminal Code.

It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:

at the time of the alleged offence, the defendant believed that his or her spouse was dead; and

the defendant’s spouse had been absent from the defendant for such time and in such circumstances as to provide, at the time of the alleged offence, reasonable grounds for presuming that the defendant’s spouse was dead.

For the purposes of subsection (2), proof by a defendant that the defendant’s spouse had been continually absent from the defendant for the period of 7 years immediately preceding the date of the alleged offence and that, at the time of the alleged offence, the defendant had no reason to believe that the defendant’s spouse had been alive at any time within that period is sufficient proof of the matters referred to in paragraph (2)(b).

To avoid doubt, section 9.2 of the Criminal Code (mistake of fact) does not apply in relation to the matters mentioned in subsections (2) and (3).

A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married.

It is not an offence against this section for a person to go through a form or ceremony of marriage with that person’s own spouse.

In a prosecution for an offence against this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence.

In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage.

In a prosecution for an offence against this section, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have taken place whether in Australia or elsewhere.

This section operates to the exclusion of any law of a State or Territory making it an offence:

for a person who is married to go through a form or ceremony of marriage with any person; or

for a person to go through a form or ceremony of marriage with a person who is married;