Did your parents force you into a marriage you didn’t want to be in? Married your partner while still in high school? Or perhaps already married to someone at the time of your wedding ceremony?
You may be able to free yourself from this arrangement by applying for an annulment. Keep reading to learn about the requirements and surrounding laws to separate from your partner today.
What is an annulment?
An annulment is a legal procedure that declares a marriage between two people null and void. This is referred to as a “decree of nullity” and is different from a divorce as the process of nullifying a marriage means that the marriage will be considered invalid from the start – as if the marriage had never taken place.
The processes for annulment in Australia are stipulated under section 51 of the Family Law Act 1975 and sections 23 and 23B of the Marriage Act 1961 (Cth). The power to nullify a marriage is vested in the Family Court of Australia and the Family Court of Western Australia.
Grounds for annulment
The Family Court of Australia may declare that a marriage is invalid on the following grounds:
- One or both of the parties were already married at the time of marriage; or
- The parties are in a prohibited relationship; or
- One or both of the parties was under-age at the time of marriage; or
- One or both of the parties were forced into the marriage under duress.
The Courts will NOT declare a marriage invalid because:
- The marriage has not been consummated;
- The parties have never lived together;
- There is a history of family violence; or
- Other incompatibility issues exist.
Already married?
It is considered a criminal offence to marry a person whilst being married to another. This is referred to as “bigamy” and carries a five (5) years’ imprisonment sentence under section 94 of the Marriage Act 1961 (Cth). The Courts will also nullify the marriage if evidence of bigamy is found.
You may be charged with bigamy under s 92 of the Crimes Act 1900 (Cth), which carries with it a maximum penalty of seven (7) years’ imprisonment.
If you choose to defend yourself, the Crimes Act contains two possible defences:
- That your partner has been continually absent for seven (7) years; or
- In NSW, your partner has been continually absent, and you possessed a reasonable belief that your partner was deceased.
Bigamy is considered summary offence, and the case will be dealt with by a Magistrate in the Local Court.
Prohibited relationship
A marriage will not be considered legally valid if the parties are in a prohibited relationship. The definition of a prohibited relationship is stipulated under section 23B(1)(b) of the Marriage Act 1961 (Cth), and includes:
- Marriages between parent and child; or
- Marriages between two siblings (whether of the whole blood or the half-blood).
For an adopted child, these rules apply to both their natural and adopted family.
Under-aged?
In Australia, people are free to marry who they want and must generally be over eighteen (18) years to do so. If one or both of the parties is over sixteen (16) years and wants to marry a person over 18 years, they must apply for a court order.
If a partner satisfies neither of these categories, the Court will nullify the marriage.
Forced into the marriage under duress?
Amendments in 2013 to the Criminal Code Act 1995 (Criminal Code) made it illegal to force, trick or threaten any person into getting married.
Specifically, the phrase ‘forced marriage’ appears in section 270.7A of the Criminal Code and stipulates that a marriage is nullified if a party entered into the arrangement that has not been freely and fully consented to.
- A person is unable to freely consent if they have been coerced, threatened or deceived into marriage (s 272.7A(a))
- A person is unable to fully consent if they are incapable of understanding the nature and effect of the marriage ceremony (s 272.7A(b)).
The maximum penalty for forcing someone into a marriage of seven (7) years imprisonment, or nine (9) years for an aggravated offence, such as forcing a person under the age of 18 with a disability to marry.
If a party is underage and brought to overseas to be married, the penalty increases to twenty-five (25) years.
(i) The importance of freely and fully consenting to marriage
The notion of freely and fully consenting to marriage originated as a mechanism to protect vulnerable young women from gender-based violence (UNHCR Handbook for the Protection of Women and Girls (2008)). Specifically, the United Nations Committee on the Elimination of Discrimination against Women (UNCEDAW) has observed that it is a woman’s right to “enter freely into marriage is central to her life and to her dignity and equality as a human being”.
The requirement for freely and fully consenting to marriage was introduced by the Crimes Amendment (Slavery) Act.
(ii) What’s the difference between a forced marriage and an arranged marriage?
It’s important to recognise the distinction between a forced marriage and an arranged marriage.
Unlike a forced marriage, an arranged marriage occurs when a person is introduced to a potential spouse, usually by a family member, with the intention of marrying. Both partners have the ability to choose whether they want to be married and have the capacity to agree.
(iii) What are some signs that someone has been forced into a marriage?
1800Respect states that the following behaviours may be indicative of the fact that they may be, or are in risk of entering into, a forced marriage:
- They suddenly announcing that they have become engaged and not seeming happy about it;
- They suddenly leaving school, work or university;
- Spending long periods of tie away from school, work or university without a reasonable explanation;
- They have run away from home;
- There is evidence of family violence or abuse;
- They have relatives who have married under the age of 18;
- They are usually not allowed out, or must have a family member with them;
- They have demonstrated signs of depression, self-harming, drug or alcohol abuse, or;
- They appear nervous or scared about an upcoming family holiday.
If you suspect that someone is a victim of forced marriage, contact the police immediately.
Applying For Nullity
For eligibility to apply for annulment, at least one of the Applicants must:
- Be an Australian citizen;
- Live in Australia or consider Australia to be their permanent home, or;
- Ordinarily live in Australia for at least 12 months prior to making the application.
To apply for nullity, you should seek out a solicitor who can help you fill out an Initiating Application form. You must also sign an affidavit, stating;
- The facts relied on for an annulment of the marriage; and
- Details of the marriage ceremony.
You must also pay for the filling fee for the application for a decree of nullity (as at 1 July 2020, the filing fee is $1,195.00). A reduced fee may be granted to the Applicant if they hold certain government concession cards or can demonstrate that they are experiencing financial hardship.
To commence the annulment process, the Applicant must serve the papers on the Respondent to the application. These documents must be given personally by someone other than the Applicant, on their lawyer, or by post or electronic transmission.
In addition, a copy of the court Marriage, Families and Separation brochure, an Affidavit of Service form and an Acknowledgment of Service form must also be served.
If the other party seeks to contest the application, a Response to Initiating Application form must be filed. This should be supported by an affidavit, detailing why the application is being contested, or why the Family Court of Australia does not have the jurisdiction to hear this case.
If the application is accepted by the Court, the annulment is effective immediately and the marriage will be considered invalid. However, it does not cover any financial or parental controls, and legal advice should be sought on handling these matters.
Follow this link for more information on applying for a decree of nullity.
Case study – Kirvan & Tomaras [2018] FamCA 171 (21 March 2018)
The recent decision of Kirvan & Tomaras [2018] highlights the court’s approach to nullifying marriages in the context of bigamy.
Ms Kirvan had married her ex-husband in a foreign country before moving to Australia on a student visa in March 2016. A month after declaring on her visa forms that she had married, she reported to the Department of Immigration and Home Affairs that she had separated with her partner, ultimately preventing him from moving to Australia on a similar visa.
Meanwhile, Ms Kirvan met Mr Tomas in early 2017 and commenced a relationship with him, coinhabiting soon after before becoming wedded in mid-2017.
The couple knew that Ms Kirvan’s divorce proceedings with her previous partner had not been finalised and that they were required to complete a Notice of Intended Marriage, pursuant to regulation 38 of the Marriage Regulations 1963.
In this notice, the couple represented that their respective marital statuses were “never validly married”, despite understanding that Ms Kirvan was still technically married to her former partner and was waiting for divorce proceedings to settle. The divorce between the two was settled on 22 October 2017. However, the court held that the marriage between Ms Kirvan and Mr Tomaras was null and void as Ms Kirvan was technically “lawfully married” to another person at the time of her second marriage.
Justice Berman stated that Mr Tomaras was “complicit in [his] wife’s misrepresentation” on the Notice of Intended Marriage, and that the marriage between Ms Kirvan and Mr Tomaras had been “blatant in order to undergo a marriage ceremony in circumstances where they knew it was not permissible to do so”.
Let us answer your questions about annulments and family law
If you seek to nullify your marriage for any reasons, it’s time to find a reliable and experienced divorce lawyer.
Here at JB Solicitors, we’ll make the annulment process as pain-free as possible. We have fixed-free pricing for divorce, annulments and family law, giving you a clear sense of the cost of your divorce from the start. We’ll help you out every step of the way, from filing the Application, filing and serving it, up to the finalisation of your annulment.
With years of experience under our belt, our Family Law department prides ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors to get started on your annulment proceedings, or for assistance with any other legal matter.
