Warning Against Unregisterd Marriages

[harrry]

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/145.html?stem=0&synonyms=0&query=thailand%20and%20marriage

NYGH & KASEY [2010] FamCA 145

FAMILY LAW – MARRIAGE – Validity of marriage – Parties participated in Catholic wedding ceremony in Thailand – Marriage not registered – Application of the Marriage Act 1961 (Cth) and the common law principles of private international law – Application of the Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages – Whether the marriage not formally registered by the applicant because of a conscientious objection – Whether such conscientious objection constituted an exception to the rule that the formal validity of a marriage is governed by the law of the place of celebration (lex loci celebrationis) – Consideration of oft-quoted authority Milder v Milder [1959] VR 95 with respect to the words “against conscience” – HELD – Applicant held conscientious objection – Exception to presumption established – Marriage proved – Divorce order granted

end quote

This shows the court in australia will consider a relationship a marriage even though not registered.

Living with someone for 2 years is a defacto relationship (Regardless of same or opposite sex and gives an entitlement to property division,)

Marriage also gives an entitlement to a large share of superannuation,.

[hansnl]

Can you mention any case?

Normally, a marriage or partnership will only be recognised if formally notarised or registered.

In most countries a religious ceremony alone is not ground for a validity of partnership or marriage.

In fact, in most countries the civil ceremony (marriage by law or partnership by notary description) must come before the religious ceremony, illegal to do it the other way around.

The non registration because of concentious objection is just what is says, someone does not want to register the marriage because he has objections against registration, in that case a marriage can be and will be valid under the Hague Convention.

The Hague convention prescribes where and when a marriage or partnership is valid.

And that is only the case if duly registered by local law.

And in most cases, if a marriage is done by law, or in an Amphur or Ket, it is a legal marriage in Thailand and most countries will recognise that marriage.

But, there are countries that also want to have the marriage registered in both countries to make it valid.

If Australia thinks that living together for two years without any legal form is in fact a (legal) partnership, is contrary to the Hague Convention.

[harrry]

Can you mention any case?

Normally, a marriage or partnership will only be recognised if formally notarised or registered.

In most countries a religious ceremony alone is not ground for a validity of partnership or marriage.

In fact, in most countries the civil ceremony (marriage by law or partnership by notary description) must come before the religious ceremony, illegal to do it the other way around.

The non registration because of concentious objection is just what is says, someone does not want to register the marriage because he has objections against registration, in that case a marriage can be and will be valid under the Hague Convention.

The Hague convention prescribes where and when a marriage or partnership is valid.

And that is only the case if duly registered by local law.

And in most cases, if a marriage is done by law, or in an Amphur or Ket, it is a legal marriage in Thailand and most countries will recognise that marriage.

But, there are countries that also want to have the marriage registered in both countries to make it valid.

If Australia thinks that living together for two years without any legal form is in fact a (legal) partnership, is contrary to the Hague Convention.

The link to the complete case judgement wqa given in the post above.

[Maestro]

I believe this paragraph of section 88E of Australia's Marriage Act covers the case:

Subject to subsection (2), a marriage solemnized in a foreign country that would be recognized as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognized as valid shall be recognized in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.

I haven't looked up the "rules of private international law" yet.

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Maestro

[Maestro]

The "Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages" is here:

www.hcch.net/upload/wop/gaf_pd08e2006.pdf

It includes neither of the terms "common law" and "conscience". Therefore, in the cited case it was probably Australian law that allowed a common law marriage celebrated in Thailand to be valid in the context of a divorce action.

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Maestro

[harrry]

The "Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages" is here:

www.hcch.net/upload/wop/gaf_pd08e2006.pdf

It includes neither of the terms "common law" and "conscience". Therefore, in the cited case it was probably Australian law that allowed a common law marriage celebrated in Thailand to be valid in the context of a divorce action.

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Maestro

I am not a lawyer but from the reasons the judge gave it seems that her statement: Upon compliance with the formal requirement to register the marriage under Thai law, I would have been required, under the Name Act of 1962 ( Thailand ), to change my surname to my husband’s name. I held a strong conscientious objection to being forced to change my name under what I considered to be a discriminatory law

was sufficient to bring the concience provisions but I am not sure where these are found.

The end result is that it is quite possible for a person who does not register a marriage in Thailand to be legally treated as married.

[Maestro]

I see that the decision of the family court of Australia to recognise the common-law marriage in Thailand according to the rites of the Catholic chuch between Ms Nygh and Mr Kasey as valid was based on Australian law, with reference to "private international law". See paragraph 88 of the decision:

if the ceremony had been conducted in Australia it would have constituted a valid marriage ceremony

The church issued a marriage certificate to them. Whether the court's decision would have been the same if it had been a Buddhist ceremony remains an open question.

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Maestro

[Mario2008]

In Thailand it would not be a legal marriage. In some other countries it does have legal standing if people live together for a period of several years. They would still not be married and would have more something like a civil partnership with legal and financiel consequences. But I suspect in those cases, one would have to move and live in those countries. If they only live together in Thailand it would probably not hold.

If there is an international connection, the rules can always be different. One can for example divorce at the amphur in Thailand and agree that the husband keeps all asstes and the wife doesn't get anything. But if the wife goes to a British court and makes claims to her part of property in the UK a British judge can ignore the settlement in Thailand.

[harrry]

In Thailand it would not be a legal marriage. In some other countries it does have legal standing if people live together for a period of several years. They would still not be married and would have more something like a civil partnership with legal and financiel consequences. But I suspect in those cases, one would have to move and live in those countries. If they only live together in Thailand it would probably not hold.

If there is an international connection, the rules can always be different. One can for example divorce at the amphur in Thailand and agree that the husband keeps all asstes and the wife doesn't get anything. But if the wife goes to a British court and makes claims to her part of property in the UK a British judge can ignore the settlement in Thailand.

That is what makes this important. He was not counted as having a defacto relationship which has financial penalties but decared as married which meant that he actually committed bigamy when he married someone else.

[sarahsbloke]

The "Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages" is here:

www.hcch.net/upload/wop/gaf_pd08e2006.pdf

It includes neither of the terms "common law" and "conscience". Therefore, in the cited case it was probably Australian law that allowed a common law marriage celebrated in Thailand to be valid in the context of a divorce action.

--

Maestro

I am not a lawyer but from the reasons the judge gave it seems that her statement: Upon compliance with the formal requirement to register the marriage under Thai law, I would have been required, under the Name Act of 1962 ( Thailand ), to change my surname to my husband's name. I held a strong conscientious objection to being forced to change my name under what I considered to be a discriminatory law

was sufficient to bring the concience provisions but I am not sure where these are found.

The end result is that it is quite possible for a person who does not register a marriage in Thailand to be legally treated as married.

No requirement to change your married name in Thailand, but you can, both keep your original names, both have the mans name, both have the womans name, if you want.

You don't even need to change from Ms to Mrs., totally upto the lady, my wife chose to change to my surname but keep Ms. (NS) as her title.

Edited June 26, 2010 by sarahsbloke

[Mario2008]

No requirement to change your married name in Thailand, but you can, both keep your original names, both have the mans name, both have the womans name, if you want.

You don't even need to change from Ms to Mrs., totally upto the lady, my wife chose to change to my surname but keep Ms. (NS) as her title.

That is since recently. It wasn't so when the couple in this court case had their "wedding".

[SirDougless]

A few bush lawyers on this forum. Makes fun reading though ...

[Artabus]

Very interesting link.

I read it through to the end, and the only possible summary that can be made of it is that it can't be summarised...

The ruling was made for very specific reasons, and I doubt it would be seen as precedent generally.

To the poster who said something about the respondent being bigamous, no, go to point 91.

Edited June 27, 2010 by Artabus

[harrry]

Very interesting link.

I read it through to the end, and the only possible summary that can be made of it is that it can't be summarised...

The ruling was made for very specific reasons, and I doubt it would be seen as precedent generally.

To the poster who said something about the respondent being bigamous, no, go to point 91.

I agree I was wrong there. The jusdge said he could not be charged for bigamy as he was unaware and not reckess.

However his new marriage would still be invalid which could put his new wife in an awkward spot.

As it is now the precedent any claim of concience that can be upheld would have to result in a similar result. I can see smart lawyers using it.

[harrry]

My reason for posting was just to aadvise that despite contant posts that if you have not registered a marriage you were not married and could just walk away may no longer be true.

It is much more likely that someone who you lived here with in a defacto relationship for 2 years could apply in the family court of australia and obtain a property settlement. The marriage means that this would also apply to the superanuation.

Edited June 27, 2010 by harrry

[Artabus]

My reason for posting was just to aadvise that despite contant posts that if you have not registered a marriage you were not married and could just walk away may no longer be true.

It is much more likely that someone who you lived here with in a defacto relationship for 2 years could apply in the family court of australia and obtain a property settlement. The marriage means that this would also apply to the superanuation.

Hi

I missed the fact that you were also the OP. Apologies for that.

You certainly make an interesting point about the relevance to other situations of this nature. There was nothing in the ruling that pointed to it either being a one-off or precedent, and I confess I have no idea what Australian family law usually says in that regard.

Thanks for the link. Maybe someone who understands Thai / international divorce law could comment?

[Mario2008]

Believe that what broke this case open for the Australian court to decide was the fact that the woman could only register the marriage if she would take the husbands name. She claimed that that was a violation of her human rights and had serious objections against that, reason why she didn't have a legal wedding. That was a prime factor in this case. Under the current Thai law there is no need for a woman to take the husbands lastname, so there must be another compelling reseason as for not to marry at the amphur will an Australian rule likewise for informal marriages since the Thai law changed.