In some circumstances you may require an annulment. If the marriage should not have occurred in the first place, you may seek an order that the marriage is null and void. This process formally invalidates the marriage which is different to a divorce that formally terminates the marriage.
There are specific grounds which must be met to obtain an annulment including not being “of age”, lack of consent, type of marriage or legality of the marriage ceremony.
As the Family Law system is a “no fault” system, the Federal Circuit and Family Court of Australia would not annul a marriage for reasons such as non-consummation, infidelity, or lack of cohabitation.
At Dorter Family Lawyers & Mediators, our family law specialists are highly experienced to advise and assist you with an application for annulment.
What is an annulment of marriage?
A marriage annulment is a legal designation that renders a marriage null and void – making the marriage invalid, as if it had never happened. This differs from divorce in that a divorce still recognises that the marriage had taken place.
In Australia, an annulment of marriage falls within the jurisdiction of the Family Law Act. Accordingly, a Decree of Nullity must be issued by the Family Court of Australia to formally recognise that the marriage was invalid from the start.
The process for an annulment of marriage is very different to that of divorce. But similar to divorce, marriage annulment does not cover property settlement, parenting arrangements and child support matters.
Am I eligible for an annulment of marriage?
To be eligible for an annulment in Australia either you or your spouse must satisfy one of the following:
- Be an Australian citizen
- Live in Australia and consider Australia your permanent home
- Ordinarily live in Australia and have done so for at least 12 months prior to applying
Grounds for annulment
The Family Court of Australia may move to nullify a legal marriage on the following grounds:
- One of the parties had already entered into a legally valid marriage with someone else at the time of the marriage. Otherwise known as bigamy
- The marriage represents a prohibited relationship, including marriage between siblings and direct relatives
- The marriage ceremony failed to adhere to laws of the jurisdiction in which it took place, such as using an unauthorised marriage celebrant
- Either party was a minor (under 18) at the time of marriage
- Either party did not give genuine consent to enter into the marriage. This may be because either party’s consent was solicited by duress or fraud, or mistaking the identity of the person they were marrying, or because one party did not have the mental capacity to understand the nature of the marriage ceremony
Legal repercussions for marriage annulment
When applying for an annulment on the grounds of forced marriage where coercion, fraud, threat, or mental handicap was instrumental in soliciting consent, severe legal consequences such as imprisonment may follow as these circumstances fall under Criminal Law.
Bigamy, too, carries a maximum penalty of 5 years imprisonment under the Marriage Act. However, the defence of genuine belief of spousal death or spousal absence of a minimum 7 years may be brought forward.
Applying for annulment
In order to receive a Decree of Nullity from the Family Court of Australia, you must complete several key steps.
Apply for Decree of Nullity
To apply for a marriage annulment, you must complete and file 3 copies of the Initiating Application form. With this you must include a marriage certificate and an affidavit outlining both the facts relied upon for the marriage annulment, and details of the marriage ceremony that took place.
A court filing fee of $1,195 currently applies. However, a reduced cost may be available to holders of government concession cards or those who can prove financial hardship.
Serving your application
The application for annulment (along with a copy of the Marriage, Families and Separation brochure, Affidavit of Service form and Acknowledgement of Service form) must then be personally served to the respondent (your spouse) by someone other than the applicant. This is commonly carried out by a lawyer. It’s also acceptable to serve this via post or electronic transmission, however, the respondent will need to sign an acknowledgement of service.
Refusal of application for marriage annulment
The respondent may choose to contest the application by filing a Response to Initiating Application form with an affidavit supporting their reasoning for opposing the application for annulment.
Depending on the whereabouts of the respondent, a hearing date will either be set within 42 days of the application if they are within Australia, or within 56 days if the respondent is outside Australia. If the court accepts the grounds for annulment and issues a Decree of Nullity, the marriage will immediately be considered invalid.
Marriage annulment through the Catholic Church
The Catholic Church does not acknowledge civil divorce and the State’s ability to dissolve a marriage. Because of this, The Catholic Church will not recognise re-marriage by any divorced person while their former spouse is still living. In light of this, any person who wants to remarry within the Catholic Church will have to be granted an annulment by a Catholic Church Tribunal, officially decreeing the marriage annulled in the eyes of the Church.
However, Catholic Church annulments are not regarded as a legal annulment under the law of Australia, meaning legal re-marriage will not be possible until a Decree of Nullity has been issued by the Family Court.