A declaration of nullity of marriage is a court finding

Under the Family Law Act 1975 s 44(1A) of the Family Law Act 1975 (Cth) the Family Court of Australia and the Family Court of Western Australia have the jurisdiction over applications for declaration of nullity of marriage.

A declaration of nullity of marriage is a court finding that there was no valid marriage between the parties even though a marriage ceremony took place. The aforementioned courts have the power to declare a marriage void based on the following grounds:

• One or both of the parties are already married at the time which makes the second marriage bigamous and contrary to law;
• One or both of the parties are under-age and did not have the necessary approvals from their parent/s or guardian/s; or
• One or both of the parties were forced into the marriage under duress.

At the time of the marriage, parties must not be encumbered by a previous marriage with no legal dissolution. Entering into a second marriage with full knowledge that the first marriage still exists would make such person liable for the crime of bigamy for which the penalty is 5 years imprisonment. If the other person knows that the one he/she is marrying is married then he/she also becomes liable for bigamy.

A party who wants to have his marriage annulled will have to file an Initiating Application personally with the Court or file it electronically through the Commonwealth Courts Portal (www.comcourts.gov.au). The applicant must attach to his application an affidavit stating:

• The facts and grounds relied on for the annulment; and
• Details of the marriage ceremony conducted.

The applicant must ensure to serve a copy of the application with the supporting documents to the respondent. The documents must be served ahead of the scheduled hearing to give the respondent time to prepare for the case and adjust his schedule.

The Court will schedule a hearing date 42 days from the time the application is filed if the respondent is in Australia. If the respondent is not a resident of Australia, the hearing will be held at least 56 days after the filing of the application.