Divorce or Annulment

Date: Aug 22, 2010
Document Type: Article

Some clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”. Usually this has to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are not common.  This is because the grounds to annul a marriage are quite limited.

A divorce is the ending of a valid marriage. There is only one ground for a divorce , and that is the marriage has  irretrievably broken down, which is proved by at least 12 months separation.

A decree of nullity is a finding that the marriage was void, and that there never was a valid marriage. Such a decree can only be made on specified grounds including:-
  • 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 marriage did not comply with the local law where it took place,
  • 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, 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, unless it is between a same sex couple. 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.

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.

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law. 

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