Annulment of Marriage
There are two types of marriage dissolution: divorce and annulment. An annulment is when a judge decides that there was no legal marriage.
This means the marriage is considered void by the judge, should never have taken place in the first instance, and the clock is simply turned back to the period before the marriage occurred.
Why would an annulment occur?
While marriage is something each person agrees and consents to, an annulment is quite the opposite. Likely legal grounds for obtaining an annulment could include:
- you were tricked or forced to marry someone;
- one of the parties to the marriage was under 18;
- you were not able to understand what the marriage ceremony was due to a mental disability, drugs, or alcohol;
- the person you married was already married to someone else (known as bigamy);
- the person you married is incestuous and was with a close relative (parent, grandparent, child or sibling);
- one or both spouses lied, concealed or misrepresented something such as unwillingness to have children, already having children, legal problems, or criminal problems.
Since these reasons are rather extreme, it is rare that an annulment is granted by the court. It’s not simply an “out” from the marriage.
When is an annulment not granted?
Contrary to popular belief, the court will not issue an annulment due to any of the following grounds:
- That the marriage was not consummated.
- That the parties did not live together.
- That there was family violence in the relationship.
- Any other issues surrounding the parties’ compatibility, the state of the relationship or issues experienced by the parties.
If an individual is looking for legal advice on how to apply for annulment and their circumstances or reasons reflect those mentioned above that are not accepted by the court, the alternative is to consider applying for a divorce.
How to apply for an annulment
Many couples will seek an annulment not long after getting married, however, there is no set time for when an annulment can be sought. An application for annulment is not subject to the 12-month separation period that applies to divorce.
Before you go ahead and apply to the courts for annulment, you should seek legal advice from an experienced divorce lawyer about:
- your individual circumstances and whether you have a strong case
- the risk of costs, and
- advice on how to write and present your application.
As well as this, in Australia it is important you and the other party:
- an Australian citizen
- live in Australia and regard Australia as your permanent home
- ordinarily live in Australia and have done so for at least 12 months before the annulment application.
An application for an annulment should be filed in the Family Court using the Initiating Application (Family Law) form. In addition to this, an affidavit must also be provided which states the facts required to have the marriage annulled, the details of the type of marriage ceremony performed and a copy of the marriage certificate.
The individual filing the annulment will need to pay a filing fee which can be found in the fees section available at www.familycourt.gov.au. In certain cases, a reduced fee may be sought for a decree of nullity if the individual holds certain government concession cards or can demonstrate financial hardship.
Once the application has been lodged, the court will provide a hearing date that is within 42 days if the respondent is in Australia or after 56 days if the respondent is not in Australia. Once granted by the court, it becomes effective immediately.
What happens after an annulment?
Since an annulment causes a marriage to be classified as never having happened, there are no post-marriage obligations that a divorce carry. This means no spousal support, division of property, or inheritance rights you may have had as a legal spouse. Instead, each party will simply revert to the same individual financial state they were in prior to the marriage.
However, this does become more complicated when the couple has young children or substantial property together and requires individuals to seek guidance from an experienced family lawyer.
As well as this, it is important that individuals recognise they cannot remarry until their annulment order becomes final.
Annulment can be quite complex. The application process for seeking an annulment involves many facts, documents and laws which can be a pitfall for individuals who are not familiar with these requirements. Not only is ending a relationship stressful, but it can also have a significant impact on your future – especially if property, finances, or children are involved. Seeking legal advice will ensure your rights are protected and your interests are carefully considered before facing the courts. If you have any questions or concerns about getting a marriage annulled, you should speak with one of our experienced family law attorneys today for advice on your individual circumstances.