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Annulment is a legal procedure which acts to effectively cancel or void a marriage. In the eyes of the law, an annulled marriage is recognised as legally invalid marriage.

Prior to the Family Law Act 1975 coming into effect, annulment on the grounds of a voidable marriage was an available legal avenue of matrimonial relief in Australia. The Family Law Act 1975 has since abolished the concept of a voidable marriage. Subsequently, an annulled marriage under the Act is considered void ab initio or void from the outset.

On what grounds can a marriage be declared invalid?

The Court can declare a marriage invalid based on the following grounds:

  • Either or both parties were not of legal age to marry.
  • Bigamy (one party was already married at the time of marriage ceremony).
  • Prohibited relationship (for example: sister/brother, parents/children, half-brothers/half-sisters, grandparents).
  • Either or both parties did not consent to the marriage as a result of:
    • consent was obtained by way of fraud or duress.
    • mistaken identity by one party as to whom they were marrying or the nature of the ceremony.
    • one party was not mentally capable of understanding the nature of the ceremony.
  • Ceremony was invalid (i.e. celebrant not properly appointed).
  • The parties were not compliant with the laws regarding the place of the marriage ceremony (for example: marriage ceremonies outside Australia).

The Court will not declare a marriage annulled on the grounds of non-consummation of marriage, parties not having lived together, family violence or situations of incompatibility.

How can I apply for an annulment?

An annulment requires an application to be made to the Family Court of Australia. Either party can initiate the Application, however the onus of proof is on the initiating party to determine that grounds for annulment can be proven. In conjunction with the Application, a sworn affidavit from the applicant is required to set out the facts and scenario for the annulment and should also detail the type of marriage ceremony and include a copy of the marriage certificate.

The applicant will be required to serve the application and supporting affidavit on the respondent in accordance with the rules.

A respondent to an Application to annul the marriage should file a Response and supporting affidavit to set out the facts relied upon in opposition to the Application.

If the Application for annulment is approved by the Court, the Court will issue a declaration known as a ‘decree of nullity’. A legal annulment different to other religious procedures where a church (or other place of worship) may grant an annulment that otherwise would only be recognised for religious and not legal purposes.

Can children and property orders be sought in an annulled marriage?

Pursuant to Section 71 of the Family Law Act 1975, a party to a void marriage is able to bring an application in the Family Law Court to seek orders relating to children, maintenance and property.

I’ve annulled a marriage, can I remarry?

Parties to an annulled marriage are able to legally remarry without entering into a bigamous marriage (per Section 71 Family Law Act 1975).

What is the difference between annulment and divorce?

There are two ways to legally end a marriage, annulment and divorce – the key distinction being that divorce is the ending or termination of a valid marriage whereas an annulment cancels an invalid marriage.

Questions?

Please do not hesitate to contact Irish Bentley Lawyers on 07 3229 4060 for further information in relation to marriage annulment, divorce or other family law matters.

Please note that the above does not constitute legal advice and Irish Bentley Lawyers make no representations or warranties as to the accuracy of any of the information contained herein. If you have a family law issue, then please do not hesitate to contact the team at Irish Bentley Lawyers – there is no substitute for proper legal advice based on your individual and unique circumstances.

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