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Annulment of a marriage is not the same as a divorce, but a legal declaration that a marriage between two parties is null and void from the start. Cancellations in Australia are governed by
The Family Law Act 1975 (Cth). By law, when there is a question about the validity of a marriage, the marriage can be declared invalid by the Federal Circuit and the Family Court of Australia. This is known as a declaration of nullity.
Is my marriage invalid?
A declaration of nullity means that it has been found that even though there was a marriage ceremony with a marriage celebrant, there was no legal marriage between the parties. An invalid marriage may be determined by the court on the following grounds:
- the parties were in a prohibited relationship (i.e. the marriage was between family members);
- one or both parties were already legally married at the time (bigamy);
- one or both parties were not of marriageable age;
- one or both of the parties did not give their real consent to the marriage; Where
- the marriage is invalid under section 48 of the Marriages Act 1961 (Cth).
It is particularly important to understand that the Court
not declare a marriage invalid for the following reasons:
- non-consummation of marriage;
- never having lived together;
- family or domestic violence; Where
- other reasons related to incompatibility.
What is the difference between an annulment and a divorce?
Divorce is the formal legal end of a valid marriage. It is separate and distinct from an annulment, which can only be granted in specific circumstances that render the marriage invalid. Essentially, an annulment dissolves a marriage as if it never happened, while a divorce ends a marriage while acknowledging that it did happen.
Unlike a divorce, there is no 12-month separation period required when applying for a judgment of nullity. In addition, once the Court has rendered a judgment of nullity, it takes effect immediately.
How to request the nullity?
To request nullity, an originating application must first be filed with the courts and served on the other party. In addition to this, you will need to prepare an affidavit outlining the facts relied upon to have the marriage annulled, including details of the wedding ceremony. Once this has been completed and served, the other party will have the opportunity to respond.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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