RUTHERFORD & SAFI

In *Rutherford & Safi* [2014] FamCA 154, the Family Court of Australia considered an application by Mr Rutherford seeking a declaration regarding the validity of his marriage to Ms Safi. The parties were married in an African country in August 1980. The applicant asserted that the marriage was valid in that country, which recognised polygamous unions, and that he was already married to another woman at the time of his marriage to Ms Safi.

The central legal issue before the Court was whether the marriage between Mr Rutherford and Ms Safi was valid according to Australian law. Specifically, the Court was required to determine if a polygamous marriage, valid in its country of celebration, would be recognised as valid in Australia, particularly in light of the provisions of the *Marriage Act 1961* (Cth) concerning the recognition of foreign marriages.

Justice Dawe reasoned that under section 88D of the *Marriage Act 1961* (Cth), a marriage is not recognised as valid in Australia if, at the time of the marriage, either party was already a party to another marriage that was recognised as valid in Australia. The evidence before the Court, though largely uncontradicted sworn testimony, established that Mr Rutherford was married to a first wife at the time he entered into the marriage with Ms Safi. As this first marriage would have been recognised as valid in Australia, the subsequent polygamous marriage to Ms Safi was therefore not recognised as valid under Australian law.

Consequently, the Court declared that the marriage of Mr Rutherford and Ms Safi celebrated in African Country R in August 1980 was not valid in Australia. The applicant's Initiating Application was dismissed.