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Family Law Blog

Marriage Annulment Australia – What is an Annulment and Do you Need One?

Marriage annulment in Australia is not particularly common. Although many people believe that their marriage needs to be annulled for one reason or another, it’s often the case that (from a legal standpoint) they need to go through the separation process or seek a divorce (or both).

To help you decide whether marriage annulment is for you, in this article, we will work through what an annulment of marriage is, how it differs from divorce or separation, and the requirements and process for seeking a marriage annulment.

What is an Annulment?

An annulment of marriage in Australia is a legal order that there is no legal marriage between one party and another.

It declares the marriage to be void.

To obtain an annulment, you need to get a Court order from the Federal Circuit and Family Court of Australia. That order is called a “decree of nullity”.

We’ll discuss the requirements for annulment, and when you can/can’t seek one below.

Is Legal Annulment the Same as Catholic Church Annulment?

No.

Often times people seeking annulment have come across the term because it is used regularly in traditional Catholic Church settings.

Other than some broad similarities in principles, legal annulment has no real relationship to annulment from a church perspective. An annulment in one system neither causes nor impacts an annulment in the other.

The grounds and requirements for annulment in each case are also quite different and require different processes.

If you are seeking annulment only for religious reasons, then that is a discussion best had with your church leaders or someone versed in canon law.

Annulment vs Divorce – What is the Difference Between Annulment and Divorce?

Annulment treats a marriage as if it never existed in the first place. Divorce brings an end to a marriage.

As you will see shortly, marriage annulment is only available in a limited set of circumstances.

In most cases, what many separating spouses actually need from a legal standpoint is to go through the separation process and potentially seek a divorce.

Importantly, a Court cannot hear an application for divorce if an application for marriage annulment is already on foot – so it’s best to decide on one rather than hedge your bets.

Annulment, if it applies to you, does not have the same 12 month separation period as divorce does.

Marriage annulment, while rare, is not unheard of. Read on to see if it’s right for you.

Grounds for Marriage Annulment

An annulled marriage is treated as having never really existed in the first place.

That gives us a clue about the situations where the Court might be prepared to annul a marriage – and it’s a reasonably short list.

Essentially we are looking at those times where, for one reason or another, one of the parties could not have lawfully intended to marry the other.

With that in mind, the grounds for marriage annulment are:

  1. One party was forced into the marriage under duress;
  2. The relationship was “prohibited” – eg. you were brother/sister, or another close relationship that is prohibited by law;
  3. One party was already married at the time of the marriage you are seeking to annul;
  4. One party was mistaken about who they were marrying or the nature of the marriage ceremony (that is, they did not know/understand they were in the process of getting married);
  5. One party was under lawful age for marriage at the time (in Australia that is typically 18 years old, or 16 with parental consent);
  6. The marriage itself did not comply with the laws in the country where it took place.

As you can see, all of these are situations where the Court looks at the reality of the relationship, and whether one/both parties could really have intended to lawfully enter into it.

When the Court Won’t Annul a Marriage

The Court will only look at annulment as an option when there is an underlying reason to void the marriage (annulment) rather than bring it to an end (divorce).

Therefore, the Court will not consider annulment in circumstances such as family violence, change of mind, non-consummation, not living together or similar.

In those instances, you should get family law advice on your best way forward, as legal annulment may not be an option for you.

How to Get an Annulment

As always when navigating the legal system, if you need to apply for an annulment you should really get legal advice from a family lawyer to help you along the way.

To apply for annulment in Australia, you need to be domiciled here(live here and regard Australia as your home), have lived here for at least 12 months, or be an Australian citizen.

The process to annul a marriage looks something like this:

  1. You complete the application form for the Court, together with an accompanying affidavit setting out the grounds that you believe apply to your situation;
  2. You pay the necessary filing fee to the Court;
  3. You serve the filed papers on your spouse/ex “as soon as practical”. When you serve the papers, you also need to serve some associated Court brochures and a form for your ex to complete;
  4. The other party (called the respondent) can file paperwork in reply;
  5. The Court will usually fix a date for a first hearing shortly after you file your own paperwork.
  6. From there, you will be subject to various Court directions and procedures. Those will lead up to a hearing where a Judge will listen to submissions and consider the outcome.

If the annulment application meets the requirements and the Court is prepared to make the “decree of nullity” then it will do so. The order will take effect immediately.

What Annulment Does not Deal With

While technically annulment is an order that the marriage is “null and void”, it does not strip you of any rights you might have in connection with spousal maintenance, property matters or child/parenting matters.

However, getting a marriage annulled does not automatically deal with those things. They are separate matters that require other actions to be taken. We strongly recommend you get independent legal advice about those and not make assumptions about what could/might happen in those areas.

Similarly, it is important to get advice on your will, enduring powers of attorney, and insurance matters to ensure that you are protected after your marriage is annulled.

Is Annulment Right for You?

Whether you’ve decided it’s divorce that you need, or otherwise convinced an annulment is right for you, please get in touch if you need assistance with anything going forward and we’d be happy to help.

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