Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Can I Get An Annulment In Australia?
Often, when people get married in haste or find out their new spouse has a hidden past, they approach their lawyer to ask if they can get an annulment in Australia.
While the answer is technically no, as annulment is an American term, there is an Australian equivalent that declares a marriage null and void.
To have a marriage declared void in Australia, a person must apply for a ‘decree of nullity of marriage’.
Getting a Divorce in Australia
Getting a divorce in Australia is a reasonably straightforward matter; however, several requirements need to be met before the court will grant a divorce.
Since the introduction of the no-fault divorce principle in 1975, the only grounds for divorce in Australia is that the marriage has broken down irretrievably.
To prove this, couples must be separated for at least 12 months. If the couple gets back together for three months or longer during this time, the 12 months starts again.
If there are children under the age of 18 involved in the divorce proceedings, a court will not grant a divorce until they are satisfied that appropriate arrangements have been made to look after the children’s wellbeing.
While there is no such law that grants annulment in Australia, parties to a marriage can apply to have the court grant a decree of nullity.
What is a Decree of Nullity?
A decree of nullity is an order from the family court that states that there is no legal marriage between two people, even if a marriage ceremony has taken place. It is the Australian equivalent of getting an annulment.
The court will only grant a decree of nullity in limited circumstances, including:
- When one of the parties was already married to somebody else at the time the new marriage took place
- The people involved are in a prohibited relationship. This usually refers to couples who are related by blood.
- The parties involved did not follow the appropriate laws applicable to the place where they were married.
- Either person was not of legal age.
- Either party did not give their true consent to the marriage because:
- Consent was obtained by fraud
- One person was mistaken as to the identity of their spouse or the nature of the marriage ceremony.
- A party was mentally incapable of understanding the implications of the marriage ceremony.
The family court will not declare a marriage to be void if the following reasons are given:
- The marriage has not been consummated.
- The parties involved have never lived together.
- There is an instance of family violence; or
- There are compatibility issues.
In regards to consent, the court will assess whether the parties consent was gained through duress or fraud, and if so, whether it affected their ability to truly understand the nature of the marriage ceremony.
Duress in such cases usually involves threats of force or actual force. Fraud must involve one party misrepresenting their true identity or the nature of the marriage ceremony itself.
If a person has misrepresented their motives for marrying the other person, this will generally not be enough to have the marriage declared void. This was the case in Hosking v Hosking.
Hosking v Hosking
In the case of Hosking v Hosking, 46-year-old Ronald George Hosking applied to the court for a decree of nullity in relation to his marriage to Jie Hu Hosking in Broadbeach, Queensland on 24 November 1993.
Ronald is an Australian citizen, while Jie Hu, though living in Sydney at the time they met, was born in Beijing and was not an Australian citizen at the time of their nuptials.
Ronald claimed that he believed the marriage was real and that he and Jie Hu would live together as man and wife after their wedding. Their marriage was never consummated, and Ronald then filed for a decree of nullity based on the grounds that his consent to marry was obtained through fraud.
Ronald’s application claimed that ‘The respondent fraudulently obtained the applicant’s consent to marriage on the basis that the respondent and the applicant reside or act as husband and wife.’
While Jie Hu did live in Ronald’s home from November until December 1993, their relationship was never romantic, and on moving out, Jie Hu moved in with a new defacto partner.
Ronald’s application to have the marriage declared null and void hinged on the fact that:
‘The respondent married the applicant in order to remain in Australia, on the basis that the respondent’s visa for residency in Australia is due to expire in the near future and at the first opportunity available the respondent left the applicant and shortly thereafter took up in a de facto relationship. The respondent only entered into the purported ceremony of marriage in an attempt to obtain permanent residency in Australia.’
The judge overseeing the case ultimately found the application to fail, as the question of fraud regarding the identity of the other party or the ceremony itself was not adequately addressed in the application.
This case demonstrates the difficulties faced by Australians attempting to have their marriages deemed null and void by the family court system.
In most cases, rather than getting an ‘annulment’ in Australia, people will end up having to go through the traditional process of gaining a divorce.