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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42653
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I asked you a question in 2013 as to whether an Australian

Customer Question

I asked you a question in 2013 as to whether an Australian man needed a divorce from an Indian Hindu marriage of 2012 (not registered) and Alex said unregistered marriages were not recognised and did not need a divorce. Now (Aug 2015) the Indian wife has
a filed a petition in Indian court, claiming damages. What do do? Would you be able to help? Thanks, PKR
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.

Hello and thank you for your question.

Just to clarify, a few issues:

Are you based in the US or NSW? For some reason you are listed as being in the US but say you are in NSW, Australia, so I need to clarify this?

Which expert advised you that unregistered marriages were not recognised?

Who is Alex?

What is this woman seeking damages for, a divorce property settlement or something else?

Thanks.

Customer: replied 1 year ago.
We are in NSW. Alex is the name I have for the lawyer who answered my question from this site (Brisbane-Lawyer Solicitor) in 2013.The couple live together only for a few weeks before the woman decided to leave and never came back. So she is seeking from Indian court:
1. Divorce from this Australian man
2. damages totaling $50,000 for mental torture (all made up) by this man that led to her quitting the place. She may have had pre-existing mental problems but refused to go to a counseller with this man.
3. Bigamy charge against the man that may lead to criminal proceedings. Although the marriage was not registered, she claims that a Hindu Marriage is legal.
I have enclosed a copy of the petition.
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Here is a scanned copy of the advice I received from Alex.
Customer: replied 1 year ago.
1. This is clearly a case for extortion in the name of mental trauma. BTW, she repeatedly rejected Supratik's attempts to go for psychological counselling while she was in Sydney. That means she may have had such problems before their relationship started. I think the incident of suicide attempt stated in the petition (if true) may have been caused by her past experiences. She was with Supratik only for 2-3 weeks. During the period she was in Sydney, she was a guest of Ray family not sharing any private moments (or bedroom) with Supratik. She slept with her brother most of the nights (rather abnormal).2. The petition is full of unsubstantiated, misleading and false assertions. One can respond to them clause by clause.3. She cannot claim to be Supratik's wife since there was no formal registration and she was not interested in him. Supratik brought her here as a prospective spouse and they realised that the two were not compatible (a common problem). For example, she would go to bed at 4AM and wake up after 12noon every day while Supratik had to get up at 7AM to go for work. She would like to have a night life on weekdays while Supratik would be tired and want to go to bed early. Hence the marriage was not registered. It has nothing to do with you causing her mental trauma.4. After she went back, the only communication between you two was on how to break the relationship. Supratik was unable to visit India to break the relationship (as her lawyer wanted) due to work and it looked unnecessary given the fact that it was not a formal relationship. We have heaps of communication on this.5. Supratik incurred a lot of expenses to develop the relationship and probably deserves a compensation.
Expert:  Patrick H. replied 1 year ago.

Hello again,

I will try to have your question referred to Alex.

Customer: replied 1 year ago.
When do you expect to get back to me?
Expert:  Patrick H. replied 1 year ago.

Depends on when or if Alex is available to answer your question.

If you would prefer I can simply opt out?

Customer: replied 1 year ago.
What do you mean? I thought I paid to get an answer to my question.
Expert:  Patrick H. replied 1 year ago.

If I opt out Alex may just be around to answer. If not, someone else will be along to assist you shortly, I just thought it would probably be best if Alex assisted you further.

Customer: replied 1 year ago.
OK, thanks.
Expert:  Leon replied 1 year ago.

Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Alex does not come on to Justanswer as often as he used to.

The petition she has filed in is India and if the man wants to fight them he has to fight them in India.

He cannot do anything in Australia.

If she gets Judgment against him then she cannot enforce it in Australia as India is not covered under the Foreign Judgement Act

http://www.austlii.edu.au/au/legis/cth/consol_act/fja1991192/

She can only chase him in India as the courts are restricted to their own country.

The cost of trying to get it registered in Australia when India is not part of the Act is going to be harder and she would have to start an action here under the Family Law Act and the length of the marriage and time that has passed will make it impossible for her to get anything.

If he wishes to defend the action he has to appoint a Solicitor in India and cross claim for his costs. I do not know the laws in India about bigamy, but in Australia a breakdown in a marriage is no fault and she would not get any compensation if he did cheat on her.

I hope all this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
Dear Leon,Thanks for your opinion. Your points are quite straightforward. The man was thinking he did not have to do anything as the marriage was not registered.We have taken legal opinion in India also. They say the case may be interpreted as bigamy that is a criminal offence in India. They can charge him on that and can also harass family members in India. If they convert the case to a criminal one, is it possible for them to get the man to be extradited to India in the extreme case?Thanks,
PKR
Expert:  Leon replied 1 year ago.

Good Afternoon

If he has remarried without a Divorce he has committed an offence and the laws here are the same.

Section 56 recognises foreign marriages

http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s56.html

Without them being registered

Section 94 deals with Bigamy

http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s94.html

The Indian courts cannot do anything to him in Australia

Only if she tries to do something in Australia can he be affected.

If he has married here again he is in breach of our laws but unless there is a complaint here nothing will happen.

Extradition is only for criminal offences and the police has to apply for it.

Expert:  Leon replied 1 year ago.

Good Morning

Just following things up and seeing if there is anything else I can assist you with?

Regards

Leon

Customer: replied 1 year ago.
Dear Leon,You may recall that the marriage was not registered and hence Alex stated that a divorce was not necessary as unregistered marriages were not recognised in Australia even though a Hindu marriage was recognised in India.So his recent marriage should not be illegal in Australia. So I don't understand your point.Would you pl clarify?
Expert:  Leon replied 1 year ago.

Good Evening

I recall that but it does not have to be registered in Australia to be valid.

Section 88D of the marriage act says it is valid

http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s88d.html

I cannot comment on what was said as I cannot see the question.

Getting remarried in Australia he is a bigamist because the marriage in india is valid.

But it is not a criminal offence.

Part VA of the Marriage act has all the sections about Foreign marriages and the whole act is at the next link

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1961

Customer: replied 1 year ago.
Dear Leon,
The question is whether a marriage not registered anywhere is valid in Australia and Alex's answer was that it was not valid even it was a Hindu marriage valid in India if it was not registered.
I enclosed the question and Alex's reply (sent again). It seems Alex was wrong. Would you pl check with Alex and confirm? I understand both of you have been working for this Justanswer site.
Expert:  Leon replied 1 year ago.

I cant check with Alex as he is no longer online

The marriage it recognised ion Australia

Customer: replied 1 year ago.
Do you mean a marriage not registered anywhere in the world can be recognised in Australia?
This completely contradicts the opinion provided by Alex. How did he make such an assertion? Is he a qualified lawyer?I think you should take it up with higher authorities of JustAnswer to contact Alex. This has shaken my confidence in Justanswer site!
Expert:  Leon replied 1 year ago.

Good Afternoon

I am saying if the marriage is a valid marriage in india it is recognised here in Australia and they are married.

It does not have to be registered for them to be seen and recognised as married in Australia

Marriages overseas, provided they are legal in the foreign country are recognised here without registration. If you need a divorce here the Family Court will give you one provided you have the original certificate from the country you were married in and if in a foreign language it has to be translated.

I cannot comment on why Alex has told you what he has told you.

The section of the Marriage Act I have sent you is clear that foreign Marriages are recognised.

Here is some further information followed by the website is it from

Getting married overseas

The Smartraveller website has detailed information about getting married overseas.

If you intend to marry overseas, please note that marriage celebrants authorised in Australia can only perform legal marriages within Australia.

An overseas marriage cannot be registered in Australia, and the foreign marriage certificate will be evidence the marriage has occurred. Ensure you keep this certificate as it may not be easy to replace if lost and it provides the only evidence of the overseas marriage.

Please note that it may not be possible to rely on a marriage certificate issued overseas for some purposes in Australia. A party to a marriage which takes place overseas may not be able to rely on an overseas marriage certificate to have an Australian driver's licence or an Australian passport issued in their married name.

An overseas marriage will generally be recognised in Australia if it:

  • was a valid marriage in the overseas country
  • would have been recognised as valid under Australian law if the marriage had taken place in Australia.

http://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx

As I said I cannot comment on what another expert has told you but the law is very clear.

Going back to your question. She is suing him in India. The laws of india do not apply here. The Courts of India cannot enforce anything decision in Australia.

So if they find he has been a bigamist under Indian law they cannot do anything to him here. They can only touch him in India.

If they find he has to pay her compensation in india, they cannot chase him here for the money as the Indian courts have no power.

Any action of the wife in India, are under indian law and will only affect him in india.

By not getting a divorce in India he has breached there laws. I cannot say if he had been granted a divorce here, whether it would have been accepted in India. To avoid the indian laws he would have had to get a divorce in india.

I hope this makes sense and is clearer?

Customer: replied 1 year ago.
Thanks for your patience. Sorry, a Hindu marriage does not provide any certificate. That is why all marriages in India are generally registered now. There used to be marriages in olden days that did not have any registration certificate. In the absence of such a certificate, one uses contextual evidences, such as photos of marriage ceremony and invitation card etc to prove the occurrence of a marriage. As far as I know, the Department of Immigration does not accept a couple as married unless they produce a marriage certificate. So in terms of practicality, it will be difficult to prove a marriage that is not registered (and has no certificate) from India. To accept a marriage, Australian authorities will ask for an Indian certificate that essentially means marriage registration in India.There is nothing called a Hindu Marriage certificate:-) I am not sure if an Australian court will accept a marriage solely based on contextual evidence.
Perhaps Alex considered this point?
Thanks
Expert:  Leon replied 1 year ago.

Good Afternoon

It is then his word against hers whether they were married.

The photos and a detailed affidavit would be acceptable here to prove a marriage.

For a divorce if a certificate is not available then evidence of the marriage under oath is acceptable.

You cannot register a foreign marriage in Australia.

If it is a valid marriage in India it is recognised here. But to prove it would not be simple but photos and other evidence would assist and be recognised in a court of law to prove the marriage.

Customer: replied 1 year ago.
It seems we have two opposite views from two lawyers (yourself and Alex) from JustAnswer and Alex cannot be contacted. Is it possible to get the opinion of another lawyer (experienced in such matters) from your site?
Thanks
Expert:  Leon replied 1 year ago.

You can re-ask the question.

We provide information that can assist you.

But I stand by my information and his initial marriage for a court application would be recognised.