What is an annulment of marriage?

What is an annulment of marriage?

By cropped movement legal

· Read time: 6 minutes

An annulment is a legal declaration that a marriage between two parties is not valid nor legally binding, even if a wedding ceremony took place. It is also called a declaration of nullity.

Annulment vs. Divorce:

Although often confused, an annulment and a divorce have separate meanings.

In simple terms, where a divorce recognises that a legal marriage has ended, an annulment expresses that a marriage was illegitimate and null of meaning from the start – and therefore never legally occurred.

Furthermore, unlike divorce, annulments do not involve parenting or financial matters.

Grounds for an annulment:

In order to obtain an annulment, you must prove to the Family Court that your marriage to your spouse was not legally binding. In order to show this, you need to fulfill one of the following grounds:

Bigamy

If you or your spouse were already lawfully married at the time of your marriage, it is void. In Australia, a marriage is only recognised if it occurs between two people.

Prohibited relationship

It is unlawful to marry any of your direct descendants, including but not limited to your parents, grandchildren, children and siblings. Siblings include both full and half-siblings, whether biological or via legal adoption.  

Unlawful age

If you and/or your spouse were too young to marry, the marriage is void. In Australia, you can only legally marry someone once you turn 18.   

No real consent

If you and/or your spouse did not give genuine consent, the marriage is not valid.

This may be because:

  • The consent was gained through duress or fraud (such as threats, violence or deceit)
  • One party mis-identified the other party by accident
  • One party was not aware of or did not understand the nature of the marriage ceremony when it was taking place
  • Either party is incapable of understanding the nature, significance, and consequences of the marriage ceremony.  

Invalid ceremony

If a marriage did not fulfil the formal requirements as expressed in the Marriage Act, it is invalid. An example of this is if the celebrant used was not authorised.

Insufficient Grounds for Annulling a Marriage

The Court does not recognise the following as sufficient grounds to give an annulment:

  • The parties not consummating the marriage
  • The parties not currently or previously living together
  • Violence between the two married parties

If you would like advice on whether or not you are eligible to apply for an annulment, get in touch with us via the contact form.

How to apply for an annulment:

You must ensure you are eligible to apply for an annulment. In Australia, you or your former spouse must be either:

  • An Australian citizen
  • A permanent resident in Australia
  • Normally live in Australia and have done so for a year at minimum before applying

Before going any further, you must try to resolve the dispute with your former spouse.

If this proves unsuccessful, there is a simple 4 step process for requesting an annulment:

  1. You must first fill out three copies of an Initiating Application with the required attachments, including your marriage certificate.
  2. You will need to prepare an affidavit (a written statement that promises you are being truthful), summarising the details of your wedding ceremony and reasons for requesting an annulment.  
  3. Once filed, the application must be personally presented to your former spouse by someone other than you. If your former spouse refuses to accept this, the application may be left physically in front of them. The papers can also be delivered via a lawyer, or through post or electronic transmission such as email. You must include a copy of the court pamphlet on Marriage, Families and Separation, an Affidavit of Service form and an Acknowledgement of Service form. It is important to note that if you are served with an Annulment application form, you may contest it if you wish. In order to do this, file a Response to Initiating Application form. Attached to this must be an affidavit setting out any evidence supporting your case. If you need help with this, get in touch with us via the contact form.
  4. Finally, you must pay the application fee. You may have this reduced if you are facing financial difficulties.

If your former spouse is in Australia, a hearing date will be set within 42 days of the application being filed. If not, the hearing date will be at least 56 days after.

Religious annulment:

People may seek an annulment so that they can remarry according to their religion. For example, in the Catholic church, a divorced person cannot remarry if their former spouse is still alive, however they CAN remarry if the previous marriage ended via an annulment.

It is important to note that Church-granted annulments are not legally recognised, and so the parties must always fulfil the requirements of the legal process.

The effect of an annulment:

Once an annulment order is finalised, you are able to remarry. However, there are some steps you will still need to take:

Like during a divorce, you have the right to seek an adjustment of property interests and make spousal maintenance arrangements. You must apply for the division of property within a year of the date of the annulment order.   

In NSW, there are some circumstances where the grounds for annulling a marriage may have negative legal repercussions. Some examples of these include:

Bigamy

It is a serious crime to marry another person if you are already married. This can see up to 5 years imprisonment. However, if your first spouse has been absent for at least 7 years or you believe them to be dead, you have a strong defence.

No consent

If you caused the other party to enter a non-consensual marriage with you, you may face a penalty of up to 7 years imprisonment (or 9 years if the victim is under 18). This could be by means of threats, violence, deception or other inappropriate behaviour.

Although these are not common, they may be useful to consider. If you would like advice on how an annulment could negatively affect you, get in touch with our friendly team.

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