By Gianna Huesch
We sometimes get enquiries from clients wondering whether it may be possible for them to have an annulment of their marriage, rather than go through the whole process of divorce.
Thanks to highly publicised Hollywood cases of marriage annulments, it can be a common misconception that having a marriage annulled is an easier way out of a bad marriage than divorce. It is often seen as a quicker method of ending a marriage, since it is necessary to be separated for 12 months before you are able to file for divorce, whereas an application for annulment can be made the very next day after a wedding.
However, in actual fact it’s quite rare for the family courts in Australia to declare a marriage null and void.
Annulment is the cancellation of a marriage–as if it never happened–that is made when a court is convinced the marriage was not legal. Having a marriage annulled requires applying to the Family Court for an order that a marriage is a nullity (described in the Family Law Act 1975 as a ‘decree of nullity’). The order has the effect of saying there is no legal marriage between the parties, regardless of whether a ceremony has taken place.
So under what circumstances can you get out of your marriage without going through a divorce?
The courts may declare a marriage invalid on the following grounds:
- consent was not given freely but under duress or fraud; i.e. you were coerced to go through wedding against your will;
- a mistake was made as to the nature of the ceremony (not a mistake in choice of partner);e. perhaps you thought you were signing up for a mediation course in another language, not the legal bond of marriage;
- one party committed fraud as to their real identity;
- either of the parties was under 18 years of age at the time of the marriage;
- the parties are of the same sex; currently as you may be aware, such marriages are not recognised in Australia;
- the parties are in a prohibited relationship (such as a brother or sister);
- your marriage partner was already married and not divorced, therefore had committed bigamy;
- the parties did not comply with the laws in relation to the marriage in the place they were married; e. even if you got married in Bali, you still need to have complied with the Balinese/Indonesian requirements for a legal marriage; or
- one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.
Despite Hollywood lore, marriages here will not be declared invalid on the grounds of non-consummation. Nor will the courts void a marriage because the parties have not lived together, because there is family violence or if there are other “incompatibility situations”.
One potential loophole that hasn’t yet been tested in the courts is the curious fact that a review of Australian marriage celebrants found many were reciting the marriage vow incorrectly, a technicality which could render those marriages invalid (see https://www.crikey.com.au/2010/08/24/crikey-clarifier-could-your-marriage-be-annulled/).
Having a marriage annulled may seem a faster and simpler process, but in fact it involves far more legal work and therefore costs, whereas divorce and be relatively cheap and simple and doesn’t even require you to front a court.
By contrast, to apply for an annulment, you need to file an application and supporting affidavit, serve it on the other side, consider their response and affidavit, attend court for a hearing (which can be 3 to 8 months later, and may take a whole day in court). And even if you have a decree of nullity granted, it will still be necessary to obtain legal advice about financial matters or parenting if there are children of the relationship.
You should obtain legal advice as to your prospects of success before going down this path.
It’s often easier to wait the 12 months and get divorced the usual way instead.
For more, see: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/divorce/applying-for-a-decree-of-nullity
Do you have any queries about the validity of your marriage and whether annulment may be a possibility for you? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400 to discuss your options.
