What do you need to know about annulment?

Firstly we need to understand that annulment is not the same as divorce. Annulment is a finding that the marriage was never valid. In order to get your marriage annulled, you need an order stating that here was never a legal marriage between you and your partner. That order is called a decree of nullity.

So even if you went through an entire marriage ceremony, the court can still order that there is no legal marriage. In Australia the Family Law Act regulates annulment.

Who can apply for a decree of nullity?

• Either party can apply for a decree of nullity if you, or your partner,
• Is an Australian citizen, or
• Live in Australia and consider Australia your permanent home, or
• Ordinarily live in Australia and have lived here for at least 12 months before you apply.

Limited grounds for annulment

A decree of nullity can only be granted on the following grounds:

• You or your partner was already validly married to someone else at the time of your “marriage”
• You and your partner are too closely related for the marriage to be legal - certain relationships are prohibited due to family relations.
• One of the parties did not consent properly – consent was obtained fraudulently or under duress, or one party did not realize the true nature of the ceremony, or there was a case of mistaken identity, or the party isn’t mentally capable of giving consent
• One, or both, of the parties was under aged to get legally married
• Your marriage ceremony did not comply with the formal legal requirements.

How do you apply for an annulment?

You apply in the Family Court for a decree of nullity.

You start the process by completing and filing an Initiating Application form. You must file three copies of the completed form. You need to include your marriage certificate and an affidavit stating your grounds for the annulment. You also need to include details of your marriage ceremony.

You need to pay a filing fee. You can apply for a reduction if you can prove financial hardship, or if you hold certain government concessions.

A hearing date will normally be set for a date within 42 days from the application, if the respondent is present in Australia. If not, the date will be set at least 56 days after the application was filed.

Serving papers on the other party

You (the applicant) have to serve the papers on the other party (the respondent) to commence with the application. Serving is done in one of the following ways:

• By giving the papers to the respondent personally, or to their lawyer. Take note, that the applicant cannot give the papers to the respondent, it must be done by another person. If the respondent refuses to take the papers, it may be placed on the ground after telling them what it is.
• The papers may also be served by post or electronic transmission – the respondent must acknowledge receipt by signing an acknowledgement of service.

You need to include the following documents when serving the application:

• A copy of the Marriage, Families and Separation court pamphlet
• An Affidavit of Service form
• An Acknowledgement of Service form

How to contest an application for annulment

You can contest an application for annulment by completing and filing a Response to Initiating Application form. You need to include an affidavit stating the grounds that you are relying on to oppose the application. If you are disputing that the Family Court has jurisdiction to hear the matter, you need to state that in the affidavit as well.

Effect of a decree of nullity

If the court grants an annulment order it is effective immediately. Unlike Divorce, it does not require any parenting or financial orders. You can apply for division of property, but you must do so within twelve months from the annulment. Seek legal advice regarding the division of property, parenting or other financial matters.

Annulment by the Catholic Church – do you still need a decree of nullity?

Yes, you do. A divorced person cannot marry again in the Catholic Church if the Tribunal of the church did not annul the marriage. The law, however, does not recognize a church annulment as a legal annulment. You still need to legally annul the marriage by applying for a decree of nullity in the court. You have to legally end the marriage before you can remarry legally.

Seek legal advice

If you think that your marriage might not be legally valid, seek legal advice if you want to apply to the Family Court for an annulment.