Annulment of marriage
This article provides information on the differences between divorce and marriage annulment, and what legal requirements you need to satisfy for the Court to issue a decree of nullity.
The information on this page is general in nature and does not constitute legal advice. If you would like advice in relation to your personal situation, give Unified Lawyers a call at 1300 667 461.
Table of contents
- Annulment of marriage
- Table of contents
- What is an annulment of marriage?
- How does a marriage annulment differ from a divorce order?
- What is a decree of nullity?
- What are the grounds for marriage annulment in Australia?
- Who can apply for an annulment of marriage?
- What are the risks of getting an annulment?
- How do I get a marriage annulled in Australia?
- How long before I can get an annulment?
- Is it better to get a divorce or annulment?
- Annulment by the Catholic Church
- Who should I contact to get an annulment?
What is an annulment of marriage?
An annulment of a marriage is a decree of nullity made by the Federal Circuit and Family Court of Australia under Part 3, Division 1, Section 23 of the Marriage Act 1961 (Cth) which voids the marriage; and is a legal procedure that declares a marriage null and void.
In simple terms, it means that the marriage was never valid and does not have the same legal implications that a divorce does. That is to say, there is no risk of a future property settlement dispute. In effect, there is no shared property because you were not legally married.
How does a marriage annulment differ from a divorce order?
A divorce order is a Court order that dissolves a legal marriage, whereas a decree of nullity has the effect of stating that a marriage never existed between the two parties. In legal terminology, a marriage annulment makes a void marriage which means it was not legally valid.
Under a divorce order, the assets of the marriage, including debts, will be divided between the two parties. If children were created from the marriage then child custody and child support issues will be determined in a divorce proceeding.
The key difference between a divorce order and a decree of nullity is that under a divorce order the marriage was valid whereas, under a decree of nullity, the marriage was never actually valid.
What is a decree of nullity?
A decree of nullity is a retrospective Court Order stating that the two parties never had a legal marriage.
If your petition is successful, then the declaration of nullity made by the Court is effective immediately and nullifies the marriage. An annulment does not however resolve child custody, child support or any property settlement disputes.
What are the grounds for an annulment of marriage in Australia?
When a petitioner applies for an annulment, the Federal Circuit and Family Court of Australia will only declare a marriage invalid in limited circumstances such as the following grounds:
- one of the parties was still legally married to another person at the time of the marriage, also known as bigamy;
- the parties are in an illegal or prohibited relationship, for example; one of the parties to the marriage is a close relative (grandparent, parent, child or sibling, or half sibling) which means that any marriage that took place is void ab initio, and was not legal at any point in time;
- one of the parties could not give their full consent to the marriage because they were acting under duress or fraud or it was a forced marriage;
- one of the parties was misled as to the identity of the person, or the nature of the ceremony;
- the celebrant was not authorised to conduct the marriage ceremony performed;
- one of the parties is mentally incapable;
- one of the parties was under the influence of drugs or alcohol;
- one of the parties was living with a mental illness or did not have the mental capacity to understand the effect of the marriage ceremony; or
- one of the parties was under the age that a person can legally get married at the time of marriage as laid out in Part 2, Section 12 of the Marriage Act 1961 (cth).
The Court will not however consider the following, as being sufficient grounds for an annulment:
- non-consummation of the marriage;
- not living together;
- family violence; or
- incompatibility situations.
If any of these apply, then you will need to petition for a Divorce Order.
Who can apply for an annulment of marriage?
A void marriage can automatically be annulled because it is based on an illegal act. Legal reasons for a voidable marriage may exist however the marriage will not be invalidated unless one of the spouses applies for an annulment.
To apply for a decree of nullity of marriage for a voidable marriage you must:
- be an Australian citizen;
- consider Australia to be your permanent home or ordinarily live in Australia; or
- have done so for at least 12 months before you make the application.
If these circumstances do not apply to you then you will need to be separated for 12 months and apply for a Divorce Order if you wish to end the marriage.
If you meet the above criteria and can satisfy the grounds for annulment according to the Marriage Act (1961) Cth, you can petition to make the marriage void.
You cannot however apply for an annulment if one of the other party is deceased. You will need to petition for a Divorce Order instead.
What are the risks of getting an annulment?
Australia operates under a no-fault divorce system and either spouse can file a divorce application. You must however wait at least 12 months from the date of separation to file a petition for divorce. Section 48 of the Family Law Act determines that all you must prove is that the marriage has broken down.
Unlike divorce, however, it is much more difficult to establish the grounds for marriage annulment where you must prove that one party was at fault. The assets in an annulment proceeding will be split based upon the determination of fault, so in effect, the property is not shared.
In cases where both parties to the marriage had reasonable reason to believe that the marriage was valid then the property is classified as quasi-marital property and a Property Order may be made. Only one party needs to be present in a divorce proceeding however, to be granted an annulment both parties must appear in Court.
How do I get a marriage annulled in Australia?
To get an annulment of marriage in Australia you need to apply using an Initiating Application form. You will need to file three copies of the form along with a copy of the marriage certificate, plus an affidavit setting out information of the marriage ceremony and the grounds for marriage annulment.
You will be required to pay a Court filing fee. If you are experiencing financial hardship, then you may be eligible for a concessionary rate.
You can either serve the annulment papers on the respondent or have them delivered by someone who can sign an Affidavit of Service. If the respondent does not accept the papers then the person delivering the papers can leave them on the floor in front of the respondent. The papers can also be either served personally, on the respondent’s legal representative, or through electronic methods or regular post if the respondent is willing to acknowledge the service of papers.
The respondent can contest the annulment of marriage by filing a Response to Initiating form, with an affidavit outlining reasons why the annulment should not proceed.
The annulment hearing date, which is the legal procedure for annulling a marriage, will be set 42 days after the papers are served if the respondent is present in Australia or 56 days later if they are overseas.
How long before I can get an annulment?
Unlike applying for a Divorce Order, you do not have to be separated for at least 12 months before making the application.
You can use an Initiating Application Form to apply for an annulment. It does not matter how long you were married or how long you have been separated.
When you lodge the Initiating Application Form you will need to pay a filing fee.
Is it better to get a divorce or annulment?
When you file for divorce all you need to prove is that the relationship has broken down. To get an annulment you must prove that one person was at fault.
In Sharia Law, there is no real difference between an annulment and a divorce. Under Sharia Law anyone can apply for a divorce. Women however will need to get their husband’s consent. This is similar to an annulment where both parties need to be present in a Court hearing.
If you are a member of the Catholic Church and are not sure what to do, our team of family lawyers may be able to advise you on your best option.
Annulment by the Catholic Church
The Catholic Church does not recognise divorce. Even if you legally divorce according to civil law, your status in the Catholic Church remains the same. The effect is that if you wish to remarry you cannot do so within the Church if your former spouse is still living. The Church does however permit you to remarry if your previous marriage was annulled.
To remarry in the Catholic Church you need to get a secular annulment from a Church Tribunal. The presiding officers of the Church Tribunal are priests or other members of the Catholic community. To reach a determination that the marriage is not binding, the Tribunal will require sufficient evidence.
Who should I contact to get a marriage annulled?
Everyone’s situation is unique, and it can be confusing as to whether you should choose to apply for a Divorce Order or an annulment of marriage.
If you choose to apply for an annulment, you should do so as early as possible to avoid legal issues. Unified Lawyers can provide you with detailed advice and answer any questions you have, which will save you a lot of time, effort and money.
It is easy to start an annulment of marriage application. Unified Lawyers can assist you throughout the process so that you get the result that you desire.
With the best legal team helping you, you can continue living your life without worrying about the stresses that come with legal proceedings, even if you suspect that the respondent will contest your annulment application.
Unified Lawyers has been rated as one of the top three best family law firms in Sydney for the last seven years and boasts over 400 five-star reviews online from happy clients.
With a supportive team on your side, you can have faith that we will deliver the result you want. We will go above and beyond and will keep you updated every step of the way to make the process as easy as possible.
For a confidential discussion and a free consultation with an experienced family lawyer, please do not hesitate to call our family law team on 1300 667 461.