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Divorce - Nullity


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Michelle McDermott

Distinct to Divorce, a Decree of Nullity has the effect that the parties have never been married at all.

Only the Family Court can make a declaration of nullity, and that declaration will only be made where a marriage is void.

A marriage is only void in circumstances that are strictly limited to the following:

  • Either of the parties is, at the time of the marriage, lawfully married to some other person;
  • The parties are within a prohibited relationship (prohibited relationships are defined being either between a person their ancestor or decedent, or between a brother and a sister);
  • The formal requirements pursuant to the Act are not correctly followed by the parties and/or the marriage celebrant;
  • The consent of either of the parties is not a real consent because:
    • It was obtained by duress of fraud;
    • The party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
    • That party is mentally incapable of understanding the nature and effect of marriage ceremony; or
  • Either of the parties is not of marriageable age.

Well established case law requires the Family Court to strictly interpret ‘duress’ for the purpose of seeking a declaration of Nullity. This means that one party did not consent to enter into the marriage freely. Family, cultural or societal pressures to marry are unlikely to overcome the duress hurdle.

Nullity on the basis of one or both parties being mistaken about the nature and effect of the marriage ceremony has been found in cases where one party does not understand the language the ceremony is performed in and the ceremony takes a form different to the customs and traditions that party is familiar with. For example, the marriage ceremony may be in English and take place in a back garden with a few friends, where one party does not speak or understand English and in his or her culture, marriage ceremonies only take place in a church.

Having never been married, the parties’ conjugal status reverts to ‘never validly married,’ this may be relevant if you seek to later have a religious marriage ceremony. There is also no jurisdiction for the Court to seek a property adjustment under section 79 of the Act - although, depending upon the individual circumstances of the relationship, the de facto provisions may apply.



where to next?

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Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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