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Annulment of marriage in Australia

An annulment of a marriage is not the same as a divorce, but a legal declaration that a marriage between two parties is null and void from the start. Annulments in Australia are governed by The Family Law Act 1975 (Cth). According to the Act, when there is a question about the validity of a marriage, the marriage may be declared invalid by the Federal Circuit and Family Court of Australia. This is known as a declaration of nullity.

Is my marriage invalid?

A declaration of nullity means it has been found that even though there was a marriage ceremony with a marriage officiant, there was no legal marriage between the parties. An invalid marriage may be determined by the Court on the following grounds:

  • the parties were in a prohibited relationship (i.e. the marriage was between family members);
  • one or both of the parties were already legally married at the time (bigamy);
  • one or both of the parties were not of marriageable age;
  • one or both of the parties did not give their real consent to the marriage; or
  • the marriage is invalid under section 48 of the Marriages Act 1961 (Cth).

It is particularly important to understand that the Court will not declare a marriage invalid on the following grounds:

  • non-consummation of the marriage;
  • never having lived together;
  • family or domestic violence; or
  • other reasons in relation to incompatibility.

What is the difference between an annulment and a divorce?

Divorce is the formal legal ending of a valid marriage. It is separate and distinct to an annulment, which can only be granted in specific circumstances that deem the marriage to be invalid. Essentially, an annulment dissolves a marriage as if it never occurred, whereas a divorce ends a marriage whilst still recognising that it took place.

Unlike with a divorce, there is no required 12 month separation period when making an application for a decree of nullity. Further, once the Court grants a decree of nullity, it becomes effective immediately.

How do I apply for nullity?

To apply for nullity, an initiating application must first be filed to the courts and served to the other party. In addition to this, you will need to prepare an affidavit outlining the facts relied on to have the marriage annulled including the details of the marriage ceremony. Once this has been completed and served, the other party will have an opportunity to respond.

If you are looking to apply for nullity and require legal assistance, send through any enquiries to [email protected] or you can contact us on 08 8414 3400.