Case: What is a marriage?

In Nguyen v Minister for Immigration, Mr Nguyen applied for a spousal visa. He omitted to tell the Department of Immigration (or his wife) that he had fathered a child by another woman.

The issue to be considered was whether his relationship with his wife within the meaning of the Migration Regulations was “to the exclusion of all others”.

Federal Magistrate Riethmuller held:

The relevant part of the regulations requires the parties to have ‘a mutual commitment to a shared life as husband and wife to the exclusion of all others’ (emphasis added).
It was argued that the infidelity of the applicant would be a relevant factor when considering the ‘mutual commitment’ and whether or not the relationship was ‘genuine and continuing’ (as required by other parts of the regulations). However, the applicant argued, his infidelity did not ‘ipso facto’ exclude a married relationship ‘as husband and wife.’
The words of the regulation are clear. The ordinary meaning of ‘exclusion of all others’ in this context is a relationship where the spouses do not engage in acts of sexual intimacy with others, nor have children with others.
It was suggested that the normal or generally accepted meaning of a marital relationship or marriage-like relationship included sexual relationship with others, save for societies where polygamy is acceptable. While such human foibles are tolerated, and in some areas even tacitly accepted as a part of life, they are not within the well accepted meaning of a relationship that is in the nature of husband and wife. In any event, the term “to the exclusion of all others” makes it clear that the nature of the relationship has to be one only between the husband and wife. The level of intimacy involved in a sexual relationship with another (which in this case involved fathering a child) takes the applicant outside of the definition …. To argue, as the applicant did, that the Tribunal had substituted its own moral judgment overlooks the clear words of the regulation.