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Annulment of Marriage

An annulment of marriage is a legal procedure that effectively negates a marriage, making it null and void. It differs from divorce in that it retroactively invalidates the marriage from its beginning instead of terminating the union. In Australia annulments of marriage are governed by the Family Law Act 1975. This article examines the grounds for an annulment of marriage and the process through which one can be acquired in Australia.

What is an Annulment of Marriage?

An annulment of marriage requires a decree of nullity. This decree asserts that in fact no legal marriage ever existed between the parties. It effectively makes the marriage ceremony and marriage contract void, as if it never happened.

An application for annulment of marriage is made to the Federal Circuit and Family Court of Australia (FCFCA)(or if one spouse lives in Western Australia, to the Western Australia Family Court). Unlike divorce, there is no statutory length of time that must pass before a person can file for an annulment.

A decree of nullity is effective immediately. However, it is important to note that although the decree nullifies the marriage, it does not resolve custody arrangements or finalise a property settlement. An application for division of property must be filed separately within a year of the date of annulment.

Who Can Apply for an Annulment of marriage?

Only eligible people can apply for an annulment of marriage in Australia. At least one party must be an Australian citizen, or live in the country and consider Australia their permanent home, or ordinarily live in the country for at least a year before making the application.

Grounds for Annulment of Marriage

The court can only annul a marriage on specific and limited grounds. Such grounds are: if one of the parties was not old enough to legally marry, or one party was legally married to another person at the time of the marriage. Another ground for annulment is if the couple is in a legally prohibited relationship (such as between children and their parents or grandparents, or between siblings or half-siblings). If there are irregularities in the conduct of the ceremony itself, such as proof that the presiding celebrant was not authorised to perform a marriage, then that is also grounds for annulment. The final ground for the annulment of marriage relates to consent. If the original consent was obtained through fraud or duress, the true identity of one party was unknown to the other party, or if one party was mentally incompetent and unable to give informed consent, a court may annul the marriage.

However, a court will not annul a marriage on the basis of incompatibility, family violence, non-consummation, or because the couple has never cohabitated. If the application does not establish approved grounds for an annulment then the parties will have to proceed with a divorce application to formally sever the marriage.

Applying for Annulment of Marriage

An application for a decree of nullity can be made using an Initiating Application form. A total of three copies of the form must be filed, with the necessary attachments: a copy of the marriage certificate and an affidavit outlining the details of the marriage ceremony and the rationale for annulment. The current filing fee can be found here. A reduction in fee may be granted if the filing applicant is experiencing financial hardship.

Annulment papers must be served personally on the respondent, delivered by someone who then signs an Affidavit of Service. If the respondent refuses to accept the papers then the person making delivery can explain the content of the papers and then leave them on the ground in front of the respondent. The papers can also be delivered to the respondent’s lawyer, or if the respondent agrees to acknowledge service, through post or electronic transmission. The papers should include a copy of the Marriage, Families and Separation Court Pamphlet, which explains the annulment process, an Acknowledgment of Service Form, and an Affidavit of Service Form.

It is possible for the respondent to contest the annulment application through a Response to Initiating Application form, with a supporting affidavit making a case for why the annulment should not proceed. A hearing date will be set 42 days after service if the respondent resides in Australia, and 56 days later if the respondent is located overseas.

Annulment by the Catholic Church

A reason some people seek an annulment is so they can remarry according to the rules of their religion. For instance, a divorced person cannot marry in the Catholic Church while their former spouse is still alive, but they can marry if their previous marriage has been annulled. Civil annulments are not recognised by the Catholic Church, but a secular annulment can be obtained from a Church Tribunal. This religious court is presided over by priests and religious and laymen and women who are experts in Canon marital law. The Tribunal may rule that given the evidence, the marriage agreement is not binding. Secular law relating to annulments is a complex field, and specialist advice should be sought from a church law expert.

Armstrong Legal’s family law experts can help you to apply for an annulment and advise you on matters relating to property settlement and custody matters. Please call us on 1300 038 223 or send us an email to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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