Annulment vs divorce is an important topic of discussion when it comes to family law matters. People may think that these legal procedures are very similar, but they are not. An annulment or a decree of nullity is the legal process of invalidating a marriage or declaring a marriage as “null and void.” On the other hand, divorce is the process of ending a legal marriage.
Australia has adapted the no fault divorce system in family law matters. No-fault divorces do not require any proof of wrongdoing. Rather, the filing spouse simply claims that the couple cannot get along and that the legally valid marriage has broken down as grounds for divorce.
The Philippines and Vatican City are the only countries where divorce is illegal but are allowing marriage annulment or legal separation. However, Muslims living in the Philippines may apply for divorce proceedings. What about Australia? Divorce and annulment are legal in Australia and are widely used by Australians who want a fresh start with their relationships. Read on to find out more about annulment vs divorce.
Ground for Annulment and Divorce
|1. There is bigamy in the relationship. Bigamy is a criminal offence that involves an already married person marrying another person. Marriages should only exist between two people in Australia.||1. The marriage has irretrievably broken down. Divorcing couples may prove this if they have evidence that they have separated for at least 12 months or more. |
However, people who have been married for under two years can seek a certificate from a family counsellor. The family counsellor will conduct counselling sessions to see if there is a chance of reconciliation.
|2. The married couple may be related to each other, for instance, if they are siblings whether full-blood or half-blood.||2. The couple has been married for more than 2 years.|
|3. The couple did not actually consent to the marriage, or one party did not actually consent to the marriage. Another instance is that the consent was obtained with duress or fraud.||3. Separated couples who are living together under one roof may still get a divorce. However, they must prove that they established physical, emotional, financial, sexual, and social boundaries in the relationship. For instance, the couple has stopped sleeping in the same room.|
|4. A party to the marriage is too young (below 17 years old). The minimum age requirement for marriage in Australia is 18. However, a court may approve a person aged 16-18 to marry. |
5. A religious annulment is not binding on the courts and is not a substitute for a legal annulment. The grounds for obtaining a religious annulment are a matter of church law, not civil law.
Couples who didn’t qualify for a legal annulment may decide to go for divorce proceedings instead. Hence, the court may require them to go through the required 12-month separation period. While discussing annulment vs divorce, it is important to note that Australia has a ‘no-fault’ divorce system due to the enactment of the Family Law Act 1975. The following grounds are not considered in divorce in Australia:
Annulment vs Divorce: Applications
Some people may wonder how divorce and annulment applications work when talking about divorce vs annulment. The family law system will always require legal documents and affidavits in order for parties to proceed with such applications. Below is a table that sets out the steps required for applying for divorce or annulment.
|1. Couples who want to annul their marriage must be:|
-Domiciled in Australia
-Ordinarily resident in Australia for at least 12 months
-An Australian Citizen
2. Filling out a decree of nullity form
3. Submitting the decree of nullity to the Federal Circuit and Family Court of Australia along with grounds for the annulment
4. Serving the application to the other party once the court approves the initiating application
Note: The Court cannot make a divorce order in relation to the marriage unless the application for annulment of marriage is dismissed first. This is true if a court hears both divorce and annulment applications in relation to the marriage.
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|1. Couples who want to divorce must be:|
– Born in Australia
– Holding a grant of Australian citizenship
– Lawfully present in Australia for at least 12 months
– Regarding Australia as their permanent home
2. Filling out either a sole or joint divorce application form. Only one person can fill out a sole application and serve it to his/her partner if the court approves the application. A couple may submit a joint application if they agree to get the divorce. Affidavits must be attached to either form.
Note: Courts may order a hearing if there are children involved when talking about annulment vs divorce. This is because courts will have to see parents agree on parenting plans that are in the child’s best interests.
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Contesting An Annulment or Divorce Application
It’s also important to discuss the topic of contesting annulment and divorce applications. A person who has served an annulment application may also file a response if they want to contest the application. This must be accompanied by an affidavit outlining any facts they rely on to oppose the application.
Respondents may also state that the family court lacks jurisdiction to hear the application. If the respondent is in Australia, a hearing date will be set within 42 days of the application. If the respondent is not in Australia, the hearing will take place at least 56 days after the application was filed. What about contested divorce applications?
Respondents may file a response to the divorce application within 28 days if they live in Australia Australia, and 42 days if the party lives abroad. Factors such as child custody or whether the divorce was contested may affect the divorce process. In an annulment, issues such as child custody and child support must be resolved in the same manner as they are in a divorce.
Property Settlement and Spousal Maintenance
It’s also important to note that during a divorce proceeding, the court may conduct property settlement and spousal maintenance procedures. Property settlement allows divorcing or separating couples to equally divide the finances and assets in their relationship. Spousal maintenance is a type of financial aid provided for a partner who ends up in a bad financial position due to the divorce.
But what are the rights of annulled couples when discussing annulment vs divorce? Are they still entitled to property settlement and spousal maintenance procedures just like legally married couples who want to divorce? Yes. The Family Law Act actually states that annulled couples have 12 months from the date of the annulment order to seek property interests and spousal maintenance from the other party.
Annulment vs Divorce: Seeking Legal Advice
We hope this article has helped couples differentiate annulment from marriage or divorce and understand what is appropriate for their circumstances. Indeed, courts may treat annulments lightly since it has fewer risks. However, annulments may overshadow any important legal issues like parenting arrangements and property matters.
JB Solicitors will guide disputed couples to make the right legal decision like choosing between an annulment or divorce. Our team of family lawyers can aid in protecting each couple’s assets and finances while also ensuring that their children’s best interests are also met. We have mediation and arbitration services for couples who want to reach an agreement without the court’s interference.
Contact a family law attorney today for more information about annulment vs divorce.