What is annulment? Many often confuse annulment with divorce. An annulment is a legal declaration that considers a marriage between two parties to be invalid from the start and not legally binding (null and void).
A decree of nullity (another term for annulment) giving rise to an annulment of marriage is an order of the court which states that there is no legal marriage that occurred between the parties. In other words, an annulment will recognise that there was no legal marriage even if a marriage ceremony did take place.
The Family Law Act 1975 and the Marriage Act 1961 govern the rules dealing with what is annulment, its grounds, procedures, among other legal matters. This article discusses “what is annulment” and other legal matters relevant to it.
What Is Annulment? What Are Its Requirements?
To be eligible to apply for a decree of nullity in Australia, at least one of the parties must either:
- be an Australian citizen,
- be domiciled in Australia (live in Australia and consider Australia to be their permanent home), or
- ordinarily live in Australia and have done so for at least 12 months before the application.
Unlike divorce, there is no requirement that the parties should separate for a length of time.
What Is Annulment and What Are Its Grounds?
Courts can grant annulment only in limited circumstances. According to Australian Law, a marriage may be invalid from the start on the following grounds:
- Bigamy. This occurs when one party was already lawfully married to another person at the time of marriage. A valid marriage can only exist between two persons, not three.
- Prohibited Relationship. The parties to the marriage are close or direct relatives. It can include marriages between two persons who are siblings, or a parent and child.
- No genuine consent. A party was not able to give genuine consent because of the following circumstances: one party obtained consent from the other through fraud or duress; one party was mistaken as to the identity of the other 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. These scenarios can be likened to a forced marriage.
- Phoney ceremony. This means that parties did not solemnise the marriage [duly performed] under certain formal requirements stipulated in the Marriage Act 1961.
While a marriage celebrant must authorise your marriage, the failure of a marriage celebrant to hold a valid licence to marry a couple may not be enough to declare a marriage void. Section 48(3) of the Marriage Act provides that a marriage will still be valid in circumstances where the couple believed that the celebrant had authority to perform the ceremony, and they intended to lawfully marry each other.
- Under age parties. If either of the parties were not of marriageable age; underage or too young at the time of marriage. To be legally married in Australia, one of the parties should be at least 18 years old, unless a court has approved a marriage where one person is aged 16 or 17 years old.
In addition, it is important to note that there are instances in which the Family Court will not declare a marriage void. This includes:
- If the parties have never lived together,
- Any other incompatibility issues between the parties,
- There is history of family violence or domestic violence, or
- If the parties did not consummate the marriage.
If the grounds for annulment are present, then it is appropriate to file for an annulment. If the application does not establish any grounds for an annulment, then the parties will have to proceed with an application for divorce if they wish to end the marriage legally.
What Is Annulment: Legal Effects and Consequences
If a court grants the decree of nullity, it is effective immediately. The marriage annulment makes the marriage invalid from the start.
However, a marriage annulled does not include parenting or financial matters. An annulment would not have the effect of legally stripping rights that married couples have to matters like property settlement or seeking spousal support from the other.
Remedies for a matrimonial cause are still available in the same way that they were during marriage – despite the annulled marriage. You have 12 months from the date the annulment order becomes final to seek an adjustment of property interests and spousal maintenance from the other party.
Once the decree of nullity or the annulment order becomes final, you will become eligible to re-marry.
What Is Annulment Versus Divorce?
Annulment and divorce both occur when a married couple decides to separate. Many who want to end their marriage may be wondering what is annulment as opposed to divorce. The differences between the two are as follows:
- As to its nature. A divorce proceeding ends a legally valid marriage, whereas an annulment treats a marriage as if it didn’t happen at all.
- As to the grounds. For divorce cases, a reason for divorce is not mandatory. Australian family law system follows a no-fault divorce system, which means that parties can get a divorce if the marriage has simply broken down irretrievably according to Section 48(1) of the Family Law Act 1975. For annulment, parties have to prove certain grounds.
- As to the separation requirement. In the divorce process, parties must be separated for a specific time period (12 months) before they can lodge an application. For annulment, there is no requirement that the parties should be separated for a specific period of time.
What is Annulment and What Must I Do to Obtain a Decree of Nullity?
Proceedings for a decree of nullity of marriage must be between the parties to the marriage. You can seek a decree of nullity by filing an application to the Family Law Courts. If you meet the criteria stated earlier, you can proceed with filing an application for annulment. You’ll need to provide evidence proving the grounds for annulment.
Once filed, one party needs to personally serve the application to the other party. However, it is possible to serve the other party by other means, such as by email or registered post.
Why You Should Seek Legal Advice
Some would opt to go through an annulment instead of divorce for various reasons. What is provided in this article are general steps and do not involve the entirety of the annulment process. Annulment proceedings can also be contested, which is why seeking legal advice is highly recommended.
At JB Solicitors, we have a team of experienced family lawyers that can help with your application for annulment. We can help with commencing your application, preparing the necessary documents needed, and other legal matters involved.
Do you have any more queries? Obtain legal advice and contact us today.