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Can I have my marriage annulled?

Also referred to as ‘decree of nullity of marriage’ in Australia, an annulment is when a judge rules that a marriage is not legal and is therefore lawfully void.

The difference between a divorce and an annulment needs to be understood:

  • A divorce signifies the ending of a valid marriage due to irreparable breakdown as proved by 12 months of separation.
  • An annulment refers to a marriage that was never valid, so the marriage is void.

Circumstances in which an annulment will be granted

There are several circumstances where you can apply for an annulment.

You were tricked or forced

If you did not consent to the marriage, your marriage may be void. To prove this, you’ll need to establish that the marriage occurred under duress, was fraudulent, there was a mistake as to the identity of any party, you did not understand the nature of the ceremony or a party did not have the mental capacity to understand what was happening.

Duress does not have to require physical violence. Threats or controlling coercion can apply in this case, however, the party’s fear must be real. In the case of fraud, it must be shown that fraud was committed as to the identity of the person or the nature of the ceremony.

Legal requirements were not met

The Marriage Act (Cth) 1961 and the Family Law Act (Cth) 1975 contain the legal requirements for a valid marriage in Australia, such as a clergy or registered celebrant must conduct the ceremony, certain paperwork needs to be filed including a ‘notice of intended marriage’ and two adult witnesses are required at the ceremony.

Situations where legal requirements are not met include:

  • One of the marrying parties was under the age of 18.
  • Bigamy (one party was married to someone else at the time).
  • If you married a close relative (parent, grandparent, child, grandchild or sibling).

Applying for an annulment

An annulment can be requested the day of or any day following the marriage ceremony. To apply for an annulment, certain conditions must be met:

  • One party has to be an Australian citizen.
  • One party has to live in Australia and regard the country as their permanent home.
  • One party must ordinarily live in Australia and have lived in the country for at least 12 months before the application.

The procedure for an annulment is as follows:

  1. You must fill out an application and complete a supporting affidavit.
  2. This documentation must be ‘filed’ and ‘served’. This means the documents are given to your ex-partner. 
  3. The other party can file and serve responding documents. They must do this within 28 days of receiving documentation. If they choose not to do this, or fail to do this, the court may hear the matter without their input.
  4. The judge will make a decision at or some time after the court hearing based on the evidence in the documents.

Religious law

The laws of some religions contain specific requirements for ending a marriage, whether by annulment or divorce.

The Catholic Church views annulment as a lack of a consent regarding an essential element at the time of the wedding vows. The Catholic Church considers:

  • The form of the marriage.
  • The freedom of the parties.
  • The mental capacity of the parties.
  • The knowledge of marriage and of each other.
  • The intentions of the parties.

According to Islamic law, a woman needs to obtain her husband’s consent to request an annulment. An Australian civil divorce is not sufficient and until a divorce under Islamic law is arranged, the woman is still bound to the man.

In Judaism, it is uncommon for a Jewish court to certify an annulment. This requires an acknowledgment that there was never a marriage between the parties due to a fault in the formal requirements of the ceremony, or a significant misrepresentation by one of the parties.

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