Marriage Annulment in Australia

Marriage Annulment in Australia

Marriage Annulment in Australia

Find out more about what grounds constitute eligibility for an annulment of a marriage in Australia, the process to follow to be granted an order of nullity, and the difference between annulment and divorce.

In Australia, to have a legal marriage, you need to meet specific guidelines. The court may grant an annulment if there have been fraudulent or illegal actions undertaken. Let’s take a closer look.

What is an Annulment Of Marriage?

An annulment of marriage is a legal process governed by the Family Law Act. It declares that a marriage is null and void. This means that even though the wedding ceremony took place, it is no longer legal or valid. This is called a “decree of nullity.” Once the order of the Family Court is granted, it is effective immediately.

There are conditions for eligibility that will only be granted in limited circumstances.

Differences Between an Annulment And A Divorce

A divorce order will end a legally valid marriage. An annulment or decree of nullity is an order that declares marriages as invalid or void and considers them non-existent as if the event had never taken place.

The Family Law Court of Australia only grants an annulment if specific requirements have been met.

What Are The Grounds For An Annulment?

There are several limited situations where you may have grounds to apply for an annulment:

  • Either party was previously married to someone else at the time of the marriage. This act is called bigamy, a criminal offence that carries a penalty of up to seven years in prison.
  • They are in a prohibited relationship, which means with a close blood relative, i.e. sibling, parent, grandparent or adopted relative.
  • The marriage did not adhere to the appropriate laws. For example, the marriage celebrant was not authorised to conduct the ceremony.
  • One party did not consent. It may have been obtained by duress or fraudulent circumstances. A forced marriage is a criminal offence as it was not real consent.
  • They were misled about who they would be marrying or did not realise they were being married.
  • One party was mentally incapable of understanding the implications of the marriage ceremony.
  • Either party was underage; the legal age for marriage in Australia is 18 years old.

Eligibility For Annulment

In Australia, to be eligible for a decree of nullity, at least one party must be:

  • An Australian citizen, or
  • Live in Australia as your permanent home, or
  • Have lived in Australia for at least 12 months before the application

You should discuss the annulment process with an experienced family lawyer to obtain the right advice.

What Grounds Are Not Recognised For A Decree Of Nullity?

Before proceeding with your annulment application, you should be aware under what circumstances can a marriage be annulled. The following grounds are not recognised:

  • The wedding was not consummated
  • The parties never lived together
  • There is a history of family violence
  • The relationship is incompatible

If the court can not establish the decree of nullity, the parties will need to commence divorce proceedings after being separated for 12 months to end their marriage legally.

How To Apply For An Annulment?

Unlike a divorce, parties don’t need to be separated before applying for an annulment. Proceedings can commence as soon as possible to avoid legal complications.

To commence proceedings, an application form must be filed along with a copy of the marriage certificate and an affidavit that states facts relevant to the annulment and details about the type of marriage ceremony performed. An application filing fee will be payable to the court. There is a reduced fee for holders of certain government concession cards or individuals experiencing financial hardship.

The annulment papers will be personally served to the respondent via email, post or personally by a third party. They will receive a copy of the court marriage separation brochure, affidavit of service, and an acknowledgement of service form, which acknowledge that the documents have been officially served.

If the party does not contest and the application was filed appropriately, the court will set a hearing date.

If the application is successful, the family law court will grant a decree of nullity, and it will take effect immediately.

The order does not cover any financial settlement or parenting matters; it is recommended to obtain legal advice from a specialist in family law who can assist with property settlement and a parenting plan.

The Catholic Church Law

For individuals who follow the Catholic faith, specific church laws dictate the annulment of marriage. The catholic church does not acknowledge the remarriage of a divorced person if the first partner is still alive. To remarry, the church tribunal needs to annul their marriage even if they are legally divorced. Conversely, having the church grant an annulment does not legally annul the marriage, and the couple will still need to go through the legal process to end the marriage.

Secular laws can sometimes be complex, and specialist advice may be required from a church law expert.

Summary

A decree of nullity is an order issued by the Family Court of Australia which declares a marriage invalid. This means that even though the wedding ceremony took place, it is no longer legal or void. An annulment is only granted under specific circumstances and may be given if fraudulent or illegal actions have occurred.

To commence proceedings, an application form must be filed along with a copy of the marriage certificate and an affidavit which states facts relevant to the annulment and details about the marriage ceremony. Once the order of the Family Court is granted, it is effective immediately.

The order does not cover any financial settlement or parenting matters. You should obtain legal advice from your family law specialist to assist with property settlement and a parenting plan.

If the court can not establish the decree of nullity, the parties will need to commence divorce proceedings after being separated for 12 months to end their marriage legally.

You should discuss the annulment process with an experienced family lawyer to obtain the right advice.

FAQs

1. How Long Do You Have To Annul A Marriage In Australia?

Answer: An annulment is common for short term voidable marriages, but there is no legal limit for commencing proceedings. If you apply as soon as possible, it may avoid any legal complications.

Unlike a divorce, there is no requirement for parties to be separated before applying for an annulment.

2. What Are Acceptable Reasons For An Annulment?

Answer: An annulment is only granted by the Family Court under specific circumstances and may be given if there have been specific fraudulent or illegal actions undertaken to proceed with the marriage

  • already being married
  • not being old enough to be legally married
  • having a prohibited relationship with a blood relative
  • not consenting, being forced under duress or fraudulent circumstances
  • mental incapacity
  • mislead as to the identity of the betrothed
  • unlawful marriage, an unqualified celebrant

3. How Do You Annul A Marriage?

Answer: To get your marriage annulled, you need to file an application form to commence proceedings, along with a copy of the certificate of marriage and an affidavit which states facts relevant to the annulment and details about the marriage ceremony. A filing fee is payable, and documents are then served to the other party.

The annulment papers will be personally served to the other party via email, post or personally by a third party.

The family law court will set a date for a hearing, and if approved, the decree of nullity will take effect immediately when the judge decides that there was no legal marriage.

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