Overseas Marriage, Children and Dual Citizenship

Date: Sep 02, 2010
Document Type: Newsletter

Dual citizenship occurs where two or more countries deem an individual to be a citizen of that country. While most people are aware that they are a citizen of a particular country (e.g. they were born there or became naturalised), it is possible to be a dual citizen without realising it. This issue is of particular interest for people who have parents who immigrated to Australia, or were born to (or adopted by) a couple that had different national backgrounds.

This article considers some of the implications of marriage by a couple from different countries and how their child may be able to choose to exercise certain benefits of dual citizenship. To simplify the discussion, it will be assumed that one of these parents is an Australian citizen.

Overseas Marriage and Children

Australians are free (under Australian law) to marry in any country that they choose. While not required under Australian law, some countries will require the Department of Foreign Affairs and Trade (DFAT) to issue a "Certificate of No Impediment to Marriage" before an overseas marriage can take place. Additionally, different jurisdictions may have registration time frames before allowing marriage, so it pays to do some research with foreign embassies or consulates ahead of time.

A child born to a couple where at least one of the parents is an Australian citizen is not automatically an Australian citizen. Although they are entitled to citizenship by descent, it is necessary to apply to the Department of Immigration and Citizenship (or contact the nearest Australian embassy or mission if overseas). The situation is slightly different for children adopted overseas and will depend mostly on whether the child was adopted in a country that is a party to the Hague Convention on Inter-country Adoption. Not all countries in the world have adopted this treaty and those that have (e.g. China and Canada) may have made reservations or provided for special rules about how the treaty will actually operate under their domestic law.

Dual Citizens in Australia

Assuming that the child holds Australian citizenship, it may be possible for them to acquire the other parent's citizenship as well. Before 4 April 2002, an Australian citizen who became a citizen of another country automatically lost their Australian citizenship. However, Australia now permits Australian citizens to hold or acquire another country's citizenship (although strongly suggests that Australian citizens use their Australian passports when travelling to or from Australia).

Benefits & Disadvantages

There are a number of benefits for a person holding dual citizenship:

  • They will be able to travel on either passport, which may grant associated work, study and residency rights in other countries;
  • If the dual citizen holds the citizenship of a member state of the European Union, it may confer similar rights of study, work and residency in other countries; and
  • When travelling and applying for countries that require special visas, the dual citizen may be able to avoid higher fees, receive preferential treatment or be exempt from visa applications all together.

There are some potential disadvantages to dual citizenship though:

  • A country that doesn't allow dual citizenship may treat you as a citizen, regardless of whether you were to visit on your Australian passport (meaning that Australian consular officials cannot provide you with diplomatic assistance);
  • Some countries may require their citizens to perform military service, or even impose criminal penalties for individuals who attempt to exercise another nation's citizenship; and
  • Notably in the case of the United States, tax a citizen's income regardless of where it was earned in the world (unlike most countries which ignore citizenship and tax on the basis of residency).

Speaking to a lawyer is a useful step for addressing some of the difficult issues that may come up with dual citizens (particularly concerning taxation matters).

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