The short answer to “Can you annul a marriage in Australia?” is yes.
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.
To have a marriage declared void in Australia, a person must apply for a ‘decree of nullity of marriage’.
If you want to annul a marriage in Australia, you must meet strict criteria so the courts can award an annulment.
Otherwise, you may want to consider getting a divorce.
Annulment vs Divorce: What’s the Difference?
What distinguishes a marriage annulment from a divorce in Australia? A marriage annulment declares a marriage null and void, meaning the marriage is considered to have never been valid.
Conversely, a divorce ends a legally valid marriage.
While divorce acknowledges a marriage existed and ends it, an annulment states that it was never legally sound.
What Exactly Are the Grounds for Marriage Annulment?
The legal basis for annulling a marriage in Australia is well-defined. Here are the primary reasons:
- Bigamy: If, at the time of the marriage ceremony, one or both parties were already legally married to another person, the subsequent marriage is deemed invalid. Bigamy is not only grounds for an annulment but is also an offence under Australian law.
- Duress, Fraud, or Undue Influence: A marriage can be annulled if it is established that one party was coerced or misled into entering the union. This could be due to threats, deception, or other manipulation. Genuine consent is central to a valid marriage; its absence can nullify it.
- Underage Marriage: The legal age for marriage in Australia is 18. If one or both parties were below this age at the time of the marriage and did not obtain the necessary approvals from a court, the marriage is considered void. Exceptions are rare and come with strict stipulations.
- Prohibited Relationships: Australian law identifies certain relationships as prohibited for marriage. This includes direct lineal relations (e.g., a parent and child) or full or half-siblings. Marriages within these boundaries are considered void from the outset.
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 understand the nature of the marriage ceremony truly.
How to Get an Annulment: The Australian Process
For those believing they have valid grounds for marriage annulment in Australia, what steps should they undertake?
First and foremost, one must submit an annulment application to the Federal Circuit and Family Court of Australia. This isn’t a mere formality; the procedure requires collecting comprehensive documentation and tangible evidence that robustly supports the contention that the marital union was never valid.
Is There a Set Window of Time During Which One Can Seek an Annulment?
The timeline for seeking annulments contrasts with that of divorces. While divorces demand a stipulated separation period before filing, annulments don’t confine you to a specific timeframe post-marriage.
That said, it’s in the best interest of the involved parties to act promptly. When you discern circumstances potentially invalidate your marriage, initiating the annulment process is pruden
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 occurred. It is the Australian equivalent of getting an annulment.
Can You Annul a Marriage in Australia if There Is a Misrepresentation?
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 misrepresents their motives for marrying the other person, this will generally not be enough to declare the marriage 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 was curious and asked the court, “Can you annul a marriage in Australia?” and applied to the court for a decree of nullity concerning 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 because 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 to remain in Australia because 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 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 other party’s identity or the ceremony itself was not adequately addressed in the application.
This case demonstrates the difficulties Australians face 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.
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, 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 no such law grants annulment in Australia, parties to a marriage can apply to have the court grant a decree of nullity.
Final Thoughts on Nullifying the Knot
While annulment might be the best option for some, others might find solutions in alternative legal avenues.
Always consult a Family Lawyer to ensure the choices are in your best interests.
Seeking Clarity on Marriage Annulment in Australia?
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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.