How to get annulled: An easy guide to annulment applications

Wondering if you should proceed with an annulment application? This article is for you. 

Keep reading for straightforward legal advice on annulment vs. divorce, what the grounds for an annulment are, annulment applications and how to get annulled in Australia.

Annulment vs. divorce

Firstly, let’s look at the difference between annulment vs. divorce.

• A divorce legally ends a valid marriage. That means that the marriage comes to an end after two people separate. 
• In contrast, an annulment treats a marriage as if it didn’t happen. It’s a legal declaration that a marriage between two people is null and void from the start. This is referred to as a decree of nullity. 
• Unlike a divorce application, there’s no requirement for a set period of separation to have occurred before applying for an annulment with the Court.

Grounds for an annulment of marriage in Australia 

An application for an annulment of marriage is based on the grounds that the marriage is void. A marriage is void where:

1. Bigamy exists

This is when either of the parties is lawfully married to another person at the time of the marriage. A valid marriage can only exist between two people.

2. The marriage is between relatives too close to one another.

This is when the parties are within a prohibited relationship and include a marriage.

• Between a person and an ancestor or descendant of the person; or
• Between two siblings (whether of the whole blood or the half-blood);

3. There has been a phony ceremony

This is where the marriage is not solemnised under certain formal requirements stipulated in the Marriage Act. 

4. There was no genuine consent.

This is when consent to the marriage of either of the parties is not real consent because:

• it was obtained by duress or fraud;
• one party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
• either party is mentally incapable of understanding the nature and effect of the marriage ceremony

5. A party to the marriage is too young.

This is when either of the parties is not of marriageable age. 

How to get annulled: Annulment applications

1. The criteria

Firstly, to apply for an annulment, you or the other party must either be:

• domiciled in Australia (i.e. live in Australia and regard Australia as your permanent home); or
• ordinarily resident in Australia for at least 12 months prior; or
• an Australian citizen.

2. The initiating application

Secondly, you can seek a decree of nullity by making an application to the Family Law Courts. 

• If you meet the criteria above, then you can proceed with an Initiating Application.
• You’ll need to provide evidence addressing the grounds for an annulment. Proceedings for a decree of nullity of marriage must be between the parties to the ‘marriage’.

3. After filing

Once filed, the application needs to be personally served to the other party. That is, unless an additional application is made in appropriate circumstances to serve the other party by other means. For example, by email or registered post.

Other important legal considerations

Additionally, if an application for an annulment of a marriage and an application for a divorce order in relation to that marriage is before a Court, the Court can’t make a divorce order in relation to the marriage, unless it has dismissed the application for annulment of marriage first.

Furthermore, as a third party to the marriage, you can also seek an authoritative declaration that another’s marriage is or was void (a decree of invalidity), but a party to the marriage can only seek annulment of marriage in Australia.

The effect of an annulment of marriage

You might be thinking that an annulment of marriage would have the effect of legally stripping you of rights that married couples have to things like a property settlement or seeking spousal maintenance from the other after separation.

Wrong.

Under the Family Law Act 1975 (Cth), a marriage includes a reference to a person who was a party to a marriage that has been:

• (a) terminated by divorce (in Australia or elsewhere); or
• (b) annulled (in Australia or elsewhere); or
• (c) terminated by the death of one party to the marriage.

This means that remedies for a matrimonial cause are still available in the same way that they were when you were married – despite your marriage being annulled. You have 12 months from the date that the annulment order becomes final to seek an adjustment of property interests and spousal maintenance from the other party.

Finally, once the annulment order becomes final, you are eligible to re-marry.

Need legal advice around your annulment vs. divorce – or even your separation generally? Give us a call or fill out the form below to request a call back from our friendly team.