Can I get an annulment instead of a divorce?

The answer is maybe, but most likely, no. We promise we are not being difficult or pessimistic, so let us explain why…from the beginning.

Marriage in Australia is defined in the Marriage Act 1961, where section 5 lists four factors that constitute a valid marriage, adopting the definition in the old English case of Hyde v Hyde and Woodmansee (1866), namely, that marriage is:

1. The union of a man and a woman

2. To the exclusion of all others

3. Voluntarily entered into

4. For life.

Prior to the Family Law Act 1975 coming into effect, parties (or at least one of them) would often engage in a mad race to bring evidence to court in support of their application for divorce based on the ‘fault’ of their spouse, such as infidelity, abandonment and other such things. Then, thanks to section 48(1) of the Family Law Act, ‘no fault’ divorce was born. The section establishes there is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably, proven by a minimum of 12 months separation immediately prior to the filing of an application for divorce.

Annulment is a completely separate legal creature and is far rarer than divorce. Whereas divorce gives effect to the dissolution of a marriage (i.e., it is a decree that a once valid marriage is no longer in existence because it has legally come to an end), annulment, on the other hand, is a legal declaration the marriage was void from the start, meaning it was never legally in existence in the first place (section 51).

When considering whether your marriage could be declared void, family lawyers like ourselves, just like the Family Court of Australia, have to refer back to the Marriage Act 1961, in particular, section 23B, which lists the following five circumstances in which an annulment may be granted, namely:

1. At the time of the marriage, either you or your spouse was lawfully married to another person, also known as bigamy (and which, by the way, carries a penalty of five years imprisonment under Commonwealth law); or

2. You and your spouse are within a prohibited relationship, for example, you are siblings (whole or half-blood); or

3. There was a procedural irregularity at the time of your marriage, for example, the marriage celebrant was not licensed and registered by the Commonwealth to marry you; or

4. There was a lack of consent of either you or your spouse due to duress, fraud, mistaken identity or being mentally incapable of understanding the nature and effect of the marriage; or

5. Either you or your spouse was not of marriageable age, i.e., at least 18 years old unless the court has previously reduced that age by up to two years under exceptional circumstances and where the other party is of marriageable age.

Section 23B then says something at the end that is a little unusual in family law legislation: “and not otherwise”. Simply put, if you do not fit into one of the above five categories, the court will not be able to consider your application for an annulment, let alone grant you a decree. For the purposes of parenting matters under the Family Law Act or child support, whether your child is “legitimate” or “illegitimate” will make no difference.

Under circumstances where you and your (purported) spouse have had a child born of a void marriage, he or she is considered ‘illegitimate’. However, pursuant to section 91 of the Marriage Act, if that child was conceived at a time when the parties reasonably believed their marriage was valid, the child will be legitimate.

Importantly, the effect of a decree of nullity is that both parties can validly claim to have never been married previously. It is an interesting concept, but one you should bear in mind if you do, in fact, fall under one of the above criteria.

At Taylor & Scott “ We Care For You.”

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