An annulment of a marriage differs from a divorce in that it is a legal declaration that a marriage between two parties is null and void from the outset. In Australia, annulments are governed by The Family Law Act 1975 (Cth). Under this Act, if there is any doubt about the validity of a marriage, the Federal Circuit and Family Court of Australia may declare the marriage invalid. This process is referred to as a declaration of nullity.
Is my marriage invalid?
A declaration of nullity indicates that, despite a marriage ceremony with an officiant, no legal marriage existed between the parties. The Court may determine a marriage to be invalid on the following grounds:
- The marriage is invalid under section 48 of the Marriages Act 1961 (Cth).
- One or both of the parties were not eligible to be married because of their age;
- One or both of the parties were already legally married (bigamy);
- The marriage was not entered into with the consent of both parties;
- The parties were in a prohibited relationship (i.e. the marriage was between family members);
When won’t the Court declare a marriage invalid?
The Court will not declare a marriage invalid for any of the following reasons:
- That the parties have never lived together;
- That the parties are incompatible for one reason or another;
- That the marriage has not been consummated;
- That the parties have never lived together.
So what is the difference between an annulment and a divorce?
Divorce is the formal legal termination of a valid marriage. It differs from an annulment, which can only be granted under specific conditions that render the marriage invalid. Essentially, an annulment voids a marriage as if it never happened, while a divorce ends a marriage but acknowledges that it did take place.
Unlike divorce, applying for annulment (a decree of nullity) does not require a 12-month separation period. Additionally, once the Court grants a decree of nullity, it takes effect immediately.
How do I apply for an annulment?
To apply for nullity, you must first file an initiating application with the courts and serve it to the other party. Alongside this application, you need to prepare an affidavit detailing the facts that support the annulment, including the specifics of the marriage ceremony. Once these documents are completed and served, the other party will have the opportunity to respond.