Declaration of Nullity and Divorce

“Is a Declaration of Nullity the Same as a Divorce?”

After married couples have been separated for a period of twelve (12) months they may wish to apply to the Family Court or the Federal Circuit Court for Divorce. Some clients, however, ask if they can obtain a Nullity rather than a Divorce order.

What is a Nullity?

A Declaration of Nullity is a finding by the Family Court of Australia that, although a marriage ceremony may have taken place, the marriage between the parties is void and not legal. As a result, the outcome is that the parties to the void marriage do not become divorced, but rather it is as though they were never married in the first place. This is also known as a marriage annulment.

How to Declare Nullity

The Court is able to make such a declaration in accordance with the Family Law Act however, there are very specific grounds upon which a Declaration of Nullity may be sought. A Declaration of Nullity may be made on the following grounds:

1. At the time of the parties’ marriage, one of the parties remained married to someone else (a previous relationship where no divorce occurred);
2. The parties are in a prohibited relationship;
3. The parties did not comply with the laws of the marriage in the country they were married;
4. Either party was not of a legal age to marry and did not hold the relevant approvals; or
5. Either of the parties did not give their real consent to the marriage because:-
   
   • consent was obtained by duress or fraud;
   • one party was mistaken as to the identity of who they were marrying or the nature of the ceremony; or
   • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

When do you want to seek a Declaration of ‘Nullity’ and not a ‘Divorce’?

The purpose of a Declaration of Nullity is to find a marriage “void”, meaning “of no effect”. The primary reason a Declaration of Nullity is sought is when one of the parties is already married. This is often the case when:

1. A party is unaware that their previous marriage was formally registered; or
2. A party is unaware that no Divorce Order has been granted in relation to their earlier marriage.

A recent Family Court Decision dealt with this issue whereby an Application for Nullity was sought. In this case, the Wife had not obtained a Divorce Order from her previous Husband. The Wife had been separated from her former Husband for approximately 12 years prior to the second marriage, however, she was not aware that a Divorce Order had not been granted from her first marriage.

In this matter, there were three (3) steps that needed to be completed: –

1. Apply to the Family Court for a Declaration of Nullity;
2. Obtain a divorce from her first Husband; and
3. Legally re-marry.

When is a Marriage Recognised?

The ­­­­­­­­­­­­­­­­­­­­Marriage Act 1961, defines marriage as “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”

The criteria to be legally married in Australia, requires that you must: –

1. Not be married to another person;
2. Not be marrying a parent, grandparent, child, grandchild, brother, or sister;
3. Be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;
4. Understand what marriage means and freely consent to becoming husband and wife;
5. Use specific words during the ceremony; and
6. Give written notice of the intention to marry to their authorised celebrant, within the required time frame.

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 99298840.

Luke Meehan
Solicitor

Rebekah Dorter
Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.