To be or not to be: Annulment of marriage in Australia
An annulment of marriage differs from a divorce. An annulment is a legal declaration that a marriage between two people is null and void from the start – as if the marriage had not taken place. This is referred to as a decree of nullity.
On the other hand, a divorce is where marriage comes to an end after two people separate. Unlike a divorce application, there’s no requirement for a set period of separation to have occurred before applying for an annulment with the Court.
Nullifying a marriage means that the marriage is considered invalid from the start – as if the marriage never took place.
Grounds for an annulment of marriage in Australia
An application for an annulment of marriage is based on the grounds that marriage is void. A marriage is void where:
1. Bigamy exists
This is when either of the parties is lawfully married to another person at the time of the marriage. A valid marriage can only exist between two people.
2. The marriage is between relatives too close to one another.
This is when the parties are within a prohibited relationship and include a marriage.
- Between a person and an ancestor or descendant of the person; or
- Between two siblings (whether of the whole blood or the half-blood);
3. There has been a phony ceremony
This is where the marriage is not solemnised under certain formal requirements stipulated in the Marriage Act.
4. There was no genuine consent.
This is when consent to the marriage of either of the parties is not real consent because:
- it was obtained by duress or fraud;
- one party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
- either party is mentally incapable of understanding the nature and effect of the marriage ceremony
5. A party to the marriage is too young.
This is when either of the parties is not of marriageable age.
How to apply for an annulment
You can seek a decree of nullity by making an application to the Family Law Courts. To apply for an annulment, you or the other party must either be:
- domiciled in Australia (i.e. live in Australia and regard Australia as your permanent home); or
- ordinarily resident in Australia for at least 12 months prior; or
- an Australian citizen.
The application takes the form of an Initiating Application and needs to be accompanied by evidence addressing the grounds for an annulment. Proceedings for a decree of nullity of marriage must be between the parties to the ‘marriage’.
Once filed, the application needs to be personally served on the other party unless an additional application is made in appropriate circumstances to serve the other party by other means, for example, by email or registered post.
Where both an application for an annulment of a marriage and an application for a divorce order in relation to that marriage are before a Court, the Court cannot make a divorce order in relation to the marriage unless it has dismissed the application for annulment of marriage first.
As a third party to the marriage, you can also seek an authoritative declaration that another’s marriage is or was void (a decree of invalidity), but a party to the marriage can only seek annulment of marriage in Australia.
The effect of an annulment
You might be thinking that an annulment of marriage would have the effect of legally stripping you of rights that married couples have to things like a property settlement or seeking spousal maintenance from the other after separation.
Under the Family Law Act 1975 (Cth), a marriage includes a reference to a person who was a party to a marriage that has been:
(a) terminated by divorce (in Australia or elsewhere); or
(b) annulled (in Australia or elsewhere); or
(c) terminated by the death of one party to the marriage.
This means that remedies for a matrimonial cause are still available in the same way that they were when you were married – despite your marriage being annulled. You have 12 months from the date that the annulment order becomes final to seek an adjustment of property interests and spousal maintenance from the other party.
Once the annulment order becomes final, you are eligible to re-marry.
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