A divorce legally ends a valid marriage. Meaning a marriage ends after two people separate
for a minimum of 12 months.
An annulment, on the other hand, treats a marriage as if it were invalid. An annulment is a
legal declaration that a marriage between two people is null and void from the start. This is
referred to as a declaration of nullity by a Court.
Under the Family Law Act 1975 (Cth) (Family Law Act), the Federal Circuit and Family
Court of Australia have the power to declare a marriage invalid.
Unlike a divorce application, there is no requirement for a set period of separation to have
occurred before applying for an annulment with the Court.
Even though a marriage ceremony took place, the Court may declare a marriage invalid on
the basis that:
- One or both of the parties were already married at the time (bigamy);
- One or both of the parties were not of legal age and did not have the necessary approvals;
- One or both of the parties were forced into the marriage under duress;
- One party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
- Either party is mentally incapable of understanding the nature and effect of the marriage ceremony.
The Court will NOT declare a marriage invalid based on:
- Non-consummation of the marriage
- Non cohabitation
- Domestic violence, or
- other incompatibility situations.
How do I apply for an annulment?
To apply for an annulment, you need to live in Australia and regard Australia as your
permanent home or ordinarily reside in Australia for at least 12 months prior; or be an
Australian citizen.
In meeting the above criteria, you can apply for a decree of nullity, which requires you to file
and serve an Initiating Application. You will need to prepare an affidavit outlining:
- The facts relied on to support the application;
- The applicant’s belief as to whether the respondent resides in or outside Australia at the time of filing;
- If either a decree of nullity of marriage or a declaration as to the validity of a marriage is sought, details about the marriage ceremony, including time,place and
- if a declaration as to the validity of a divorce or an annulment of marriage is sought:
- The date of the divorce or order of nullity;
- The name of the Court that granted the divorce or order of nullity; and
- the grounds on which the divorce or order of nullity was ordered.
Once you file your application, you are required to serve your application and any supporting
documents on the other party (the respondent). The application must be served as soon as
practicable.
What do I do when I’ve been served with an application for nullity?
If you have been served with an Initiating application seeking a declaration of nullity, you can
file and serve a Response to initiating application.
You also need to file an affidavit setting out any facts you (the respondent) rely on in
opposing the application for nullity.
Hearing attendance
The applicant and the respondent must attend the first Court event, either in person or
electronically unless otherwise directed by a Judge or Judicial Registrar.
Other important legal considerations
You may think an annulment means the stripping away of rights a married couple divorcing
is entitled to, therefore, property settlement or spousal maintenance.
Incorrect
Under the Family Law Act , a marriage includes a reference to a person who was a party to a
marriage that has been:
- Terminated by divorce (in Australia or elsewhere); or
- annulled (in Australia or elsewhere); or
- terminated by the death of one party to the marriage.
This means that remedies for a matrimonial cause are still available in the same way they
were when you were married, despite your marriage being annulled.
There is a 12 month period from the date the annulment order becomes final to seek an
adjustment of property interests and spousal maintenance from the other party.
Once the annulment order is final, you are eligible to re-marry.
For sound legal advice surrounding your annulment, divorce, or your separation generally,
contact Cleofe Parsons Legal and we will assist you in this process.
