Can a marriage be annulled in Australia? Yes, it is possible to declare a marriage void. However, for a marriage annulment to be successful in Australia, you must meet some strict criteria. Before seeking an annulment, it is best to speak to a Family Lawyer to understand the legal processes as well as any potential legal consequences associated with annulling a marriage.
What Constitutes Marriage Annulment in Australia?
An annulment of marriage requires a decree of nullity under Section 51 of the Family Law Act 1975. A declaration of nullity is used to prove that the marriage is void, despite the fact that a marriage ceremony might have taken place. The process of annulment is significantly different to a divorce, as the nullifying of a marriage considers the marriage to be invalid from the start.
For marriage annulment to take effect in Australia, an application can be made to the Family Court of Australia. Only eligible people can apply for an annulment. At least one party must either be an Australian citizen, live in Australia or consider Australia their permanent home, or ordinarily live in Australia and have done so for at least 12 months before the application.
What Are the Grounds For an Annulment?
The Family Court of Australia may find the marriage to be void on the following grounds:
- Either party was already married at the time of the marriage (bigamy);
- The parties are in a prohibited relationship (direct relatives or siblings);
- The ceremony was invalid (for instance, an unauthorised celebrant);
- There was lack of consent (consent might not be real due to fraud, duress or a mistake); or
- Either party was underage at the time of the marriage.
The Family Court will not declare a marriage void on the following grounds:
- The marriage has not been consummated;
- The parties have never lived together;
- There is history of domestic violence; or
- There are other incompatibility issues.
Potential Legal Consequences for Annulling a Marriage
In Australia, there are instances where grounds for annulling a marriage may lead to some serious legal consequences.
Bigamy and Annulment
Under section 94 of the Marriage Act 1961 confirms that it is a crime to marry a person whilst being married to another. The maximum penalty for this crime is five years imprisonment. It is a defence to a prosecution if the defendant believes their first spouse is dead, or the defendant’s first spouse has been absent for a continual period of seven years, establishing a presumption of death.
Forced into Marriage and Annulment
Under section 270.7A of the Criminal Code Act 1995, a marriage is void if a party entered into an arrangement without free or full consent. A party might have been coerced, threatened or deceived into a marriage, or they might be incapable of understanding the nature and effect of the marriage ceremony. A person who causes the other party to enter a forced marriage may face a maximum penalty of seven years imprisonment, or nine years for an aggravated offence (the victim is under 18).
Applying for Annulment
To apply for a marriage annulment in Australia, a decree of nullity must be filed using an Initiating Application Form. Three copies of this form must be filed, along with a copy of the marriage certificate and an affidavit stating the details of the ceremony and the reasoning for the annulment. There is a filing fee for this application, and in some cases, this fee can be reduced if the applicant is experiencing financial hardship.
These papers must first be served personally on the respondent to the application by someone other than the applicant, for instance, a family lawyer. When serving the application, you must also include a copy of the court pamphlet on Marriage, Families and Separation, an Affidavit of Service form and an Acknowledgment of Service form
If the other party refuses to accept the application, they must file a Response to Initiating Application form, along with a supporting affidavit opposing the application.
Please get in touch with our family lawyers to discuss the application process for your annulment.
Speak To An Experienced Family Lawyer About Marriage Annulment in Australia
If you wish to nullify your marriage, you should do so as early as possible to avoid any potential legal issues. Our family lawyers at Emerson Family Lawyer are experienced in all marriage and divorce matters, both in Australia and internationally. We can provide you with detailed advice as well as legal representation should your annulment actually result in a divorce. Please contact our team via email or by phone.