An annulment is a declaration that a marriage is null and void, meaning that it never legally existed in the first place.
Divorce vs Annulment
In effect, both annulment and divorce bring a marriage to an end and allow both parties to legally remarry. However, an annulment and a divorce are not the same. A divorce recognises the legal end of a marriage, whilst an annulment decrees that the marriage never legally existed.
An annulment rather than a divorce may be a desirable outcome for persons whose religion prohibits divorce or the remarriage of divorced persons. However, in Australia, annulments are very rare and will only be granted in particular circumstances.
How to Get an Annulment
The Federal Circuit & Family Court of Australia have the power to declare a marriage invalid.
You may apply for an annulment by filing and serving an initiating application and an affidavit that sets out the facts relevant to the annulment and the details of the type of marriage ceremony performed.
An annulment application can be made immediately after marriage, and if a decree of nullity is granted, it will take effect immediately.
If you wish to apply for an annulment, it is recommended that you seek legal advice.
Grounds for Nullity
To obtain an annulment, you must establish a ground for nullity. A marriage will be considered null and void if:
- Either party was already married.
- Either party was not of marriageable age.
- The parties were related by blood or law.
- Either party did not consent or was incapable of understanding the effect of the marriage ceremony.
- There was a mistake as to the identity of one of the parties.
- There was a mistake as to the nature of the ceremony.
Note that despite common misconceptions, the following grounds are not valid grounds for an annulment in Australia:
- Failure to consummate the marriage.
- That the parties never lived together.
- That there was family violence.
Non-Compliance with Formalities
To get married, it is necessary to comply with the formal requirements set out in the Marriage Act. However, a marriage will not be declared invalid merely due to non-compliance with certain formalities, including:
- Failure to give notice or any errors within such notice.
- Failure to provide a declaration to the celebrant or any errors within such declaration.
- Failure to produce required documentation from the celebrant.
- Failure to comply with the witness requirements.
- The marriage was performed by an unauthorised celebrant, provided that the parties believed that the celebrant was authorised.
Religious Annulment
An annulment granted by a Church will not be legally recognised. Therefore, if you wish to legally remarry, you must commence annulment or divorce proceedings even if you have attainted a religious annulment. The grounds for annulment under law may be different to those under your religion, meaning that you may be unable to obtain a legal annulment even where you have obtained a religious annulment.
Overseas Recognition
An annulment obtained overseas will only be recognised in Australia if the annulment was granted for non-compliance with the prescribed formalities in the overseas jurisdiction.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.