Divorce or Annulment?

Date: Mar 03, 2010
Document Type: Newsletter

Numbers of clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”, and usually this is to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are quite unusual. No doubt this is because the grounds are quite limited.

A divorce is the ending of a valid marriage. There is only one ground, irretrievable breakdown, and this can only be proved by 12 months separation.

A decree of nullity is a finding that the marriage was void, that there never was a valid marriage. Such a decree can only be made on a certain number of specified grounds:-

  • That the marriage was bigamous, that one of the parties was already married at the time of the ceremony,
  • That the parties were too closely related to be allowed to marry,
  • That the ceremony was phony. The requirements of the Marriage Act must be met,
  • That there was no real consent by one of the parties,
  • That one of the parties was not of marriageable age.

The Marriage Act sets out a code of prohibited relationships for a valid marriage.

Marriage may not take place between a parent or grand-parent and a bride or groom, between siblings (including half-siblings), or between a parent and grand-parent and offspring. Bans in the past covered wider relationships such as uncles and aunts, and cousins, but these rules have been relaxed.

To get married in Australia there are formal requirements. The ceremony must be conducted by a clergy or registered celebrants. There are requirements as to the paperwork to be supplied and as to notice, and 2 adult witnesses are necessary. However a failure to comply does not invalidate the marriage.

A marriage celebrated overseas will be recognised as valid in Australia if it was a valid marriage under local law. Even a polygamous marriage will be recognised provided it was legal in the place where it took place.

The lack of consent by a party will void a marriage if :-

  • The marriage was obtained by fraud or duress,
  • There was a mistake as to the identity of a party, or as to the nature of the ceremony,
  • A party did not have the mental capacity to understand the nature and effect of the ceremony.

Duress does not necessarily require violence. Threats or even controlling parental coercion can be enough, but a party’s fear must be reasonably based. A typical example of fraud is where a party pretends to be someone else, but misrepresenting one’s financial position is not fraudulent. A woman claiming to be pregnant to the groom, or being pregnant to someone else also has been held not to be fraudulent.

One example of fraud is where a party is misled as to the nature of the ceremony. Often this is when the party has been told it is a betrothal ceremony, and such a marriage is void.

Some of our Churches have their own and different rules about nullity, and those who are adherents of a faith should make their own enquiries.

Your lawyer can assist in all matters involving marriages, separation, divorce, annulment, defacto issues, and same sex partnerships.

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