Announcing Marriage in Australia – A Detailed Guide



Annulment of marriage

Definition of marriage annulment

Differences between divorce and marriage annulment, and what conditions you must meet for the court to issue a declaration of nullity.

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—Taylor Reardon

SYDNEY, NSW, AUSTRALIA, July 2, 2021 / – What is a marriage annulment?

Annulment of a marriage is a judgment of nullity rendered by the family court under Part 3, Division 1, Section 23 of the Marriage Act 1961 (Cth) which annuls the marriage; and is a legal process that declares a marriage null and void.

Simply put, this means that the marriage was never valid and does not have the same legal implications as a divorce. That is, there is no risk of a future property settlement dispute. This is because there is no shared ownership because you were not legally married.

What is the difference between an annulment and a divorce order?
A divorce order is a court order that dissolves a marriage while a declaration of nullity declares that a marriage never existed between the two parties. In legal terminology, a marriage annulment renders the marriage void, meaning that it was not legally valid under the law.

Under a divorce order, the property of the marriage, including debts, will be divided between the two parties. If children were created from the marriage, the issues of child custody and child support will be determined in divorce proceedings.

The main difference between a divorce order and a decree of nullity is that under a divorce order the marriage was valid while under a decree of nullity the marriage was never really valid. .

What is a judgment of nullity?

A nullity judgment is a retrospective court order declaring that the two parties never had a legal marriage.

You can request an annulment from Australia Family Court or Western Australia Family Court. If your request is successful, the declaration of nullity pronounced by the court takes effect immediately and annuls the marriage. A cancellation does not, however, resolve child custody, child support, or property settlement disputes.

What are the grounds for cancellation in Australia?

When an applicant requests an annulment, the Australian Family Court will only declare a marriage invalid in limited circumstances such as:

– one of the parties was still legally married to another person at the time of the marriage, also known as bigamy
-the parties have an illegal relationship, for example; one of the parties to the marriage is a close relative (grandparent, parent, child or brother, or half-brother), which means that any marriage which took place is void ab initio and was not legal at any time
-one of the parties could not give their full consent to the marriage because they acted under duress or fraud
-one of the parties has been misled as to the identity of the person, or the nature of the ceremony
-the officiant was not authorized to perform a wedding ceremony
-mental incapacity
-one party was under the influence of drugs or alcohol
-one party was living with a mental illness or lacked the mental capacity to understand the effect of the wedding ceremony
– one of the parties was not of legal age to marry at the time of marriage, as stated in part 2, section 12 of the Marriage Act 1961 (cth).

However, the Court will not consider the following as sufficient grounds for annulment:

-non-consummation of marriage
-do not live together
– family violence
-situations of incompatibility

If any of these conditions apply, then you will need to apply for a divorce order.

Who can request the annulment of the marriage?

A void marriage can be automatically annulled because it is based on an illegal act. Legal reasons for an annulable marriage may exist, but the marriage will not be invalidated unless one of the spouses requests the annulment.

To request a judgment in nullity of marriage for a voidable marriage, you must:

– be an Australian citizen
– consider Australia your permanent home or usually live in Australia or
-have done so for at least 12 months before making the request.

If these circumstances do not apply to you, then you will need to be separated for 12 months and apply for a divorce order if you want to end the marriage.

If you meet the above criteria and can meet the grounds for annulment under the Marriage Act (1961) Cth, you can apply for the annulment of the marriage. However, you cannot request cancellation if one of the parties is deceased. Instead, you will need to apply for a divorce order.

How to cancel a marriage in Australia?

To have a marriage annulled in Australia, you must apply using an opening request form. You will need to file three copies of the form along with a copy of the marriage certificate, as well as an affidavit with information about the wedding ceremony and the reasons for cancellation. You will have to pay court fees. If you are having financial difficulties, you may be eligible for a preferential rate.

You can either serve the cancellation documents on the respondent or have them delivered by someone who can sign an Affidavit of Service. If the respondent does not accept the papers, the person issuing the papers can leave them on the ground in front of the respondent. The documents can also be served on the legal representative of the defendant, or by electronic methods or by post if the defendant is willing to acknowledge service of the documents.

Unified Lawyers has been ranked among the top three family law firms in Sydney for the past five years and has over 250 five-star online reviews from satisfied clients.

For a confidential discussion and a free consultation with a lawyer specializing in family law, please do not hesitate to call our family law team at 1300 667 461.

Taylor Reardon
Unified lawyers
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