Annulment is a process whereby a marriage is legally declared null and void. This is relatively uncommon in Australia. While divorce dissolves a marriage, annulment erases the marriage because it was legally voidable or void from the beginning. Children born of a void or voidable marriage are not legally affected by the annulment. Read on for further discussion of annulment, including the grounds, implications and procedures involved in seeking an annulment under Australian law.
Who can apply for an annulment of marriage in Australia?
To apply for a decree of nullity of marriage through the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia if one of the spouses resides in WA) the marriage does not need to have taken place in Australia. However, an applicant must:
- be an Australian citizen; or
- live in Australia and consider Australia their permanent home; or
- have lived in Australia for at least twelve months before they make the application.
In Australia, either party to a marriage can apply for a decree of nullity. Unlike with a divorce application, there is no mandatory period of separation before someone can apply for an annulment. This application simply outlines the applicant’s grounds for annulment and provides supporting evidence, such as documents, witness testimony, or expert opinion. The burden of proving that the marriage was null from its beginning lies with the applicant, who must establish (on the balance of probabilities) that the marriage is eligible for annulment. The court carefully assesses the presented evidence and makes a determination based on the merits of the application. If the court grants the decree of nullity, it is effective immediately.
Grounds for annulment of marriage
The Family Law Act 1975 outlines the grounds for annulment of marriage in Australia, specifying the circumstances when a marriage may be declared void or voidable. A void marriage is factually invalid from the outset, typically because of a legal impediment such as incest, bigamy, or lack of consent, or because it was not performed according to the formal requirements outlined in the Marriage Act 1961. A voidable marriage, by contrast, is a union that was initially valid but may be annulled under certain conditions, such as the discovery that duress, fraud, or incapacity existed at the time of the marriage.
In summary, a marriage is invalid in four main circumstances:
- Bigamy. This is where either spouse was already legally married at the time of the marriage;
- Incest. This is where the spouses are in a prohibited relationship because they are blood relatives, such as siblings, parent and child, or grandparent and grandchild.
- Consent. A marriage is void if either spouse was too young to marry (as they were underage and did not have the necessary consent of a parent or guardian), or either spouse suffered from mental incapacity, mistaken identity, or there was duress, fraud or misrepresentation; or
- Invalidity. A marriage is void if it was administratively invalid, because of incorrect paperwork or an unqualified celebrant.
A court will not declare a marriage to be invalid and grant an annulment based on non-consummation, lack of cohabitation, infidelity, family violence, or other incompatibility issues.
An annulment of marriage has significant legal implications, affecting the parties’ marital status, property rights, and entitlements. Unlike divorce, which usually necessitates a separate legal division of marital assets, an annulment does not necessarily follow the same process, though it also must be completed within twelve months of the decree. When it comes to dividing property after an annulment, the court will treat each case individually according to the circumstances. Because annulment invalidates a marriage, the parties may simply be restored to their pre-marital financial status. In that case, any financial arrangements made during the marriage are unwound. In such cases, the court can treat jointly held property like dissolving a business. In cases of annulment due to fraud or misrepresentation, the court can act like a civil court and materially compensate the injured party for the deception.
Challenges
There are limitations and challenges associated with an application for annulment of marriage. Providing valid grounds for legal annulment can be difficult, especially in cases based on issues of fraud, consent, or incapacity. Legal proceedings can be protracted and costly, especially if the other party contests the annulment.
In addition, a legal decree of nullity is distinct from an annulment afforded by a religious authority. An annulment granted by a religious authority is not recognised as a legal annulment in Australia and the parties must still secure a legal annulment or divorce before remarrying. Conversely, a legal annulment may not be sufficient for a religious authority to accept that the marriage is now null and the applicant is free to marry again in the church. This usually means that an applicant wishing to remarry in their church must go through both a legal and a religious annulment process.
Although annulment is less common in Australia than divorce, it is an important remedy to address marriages that are void or voidable on legal grounds. Please contact or phone Taylor Rose on 1800 491 469 for further advice on annulment or legal representation.
