a decree of nullity: not the same as a divorce
when will the court grant a decree of nullity?
A decree of nullity effectively says there is no legal marriage between the parties. As opposed to a Divorce, it says the parties were never married at all. An annulment will only be granted in limited circumstances and can only be granted by the Family Court.
In order for a decree of nullity to be granted, the marriage must be void. There are only a few grounds for annulment.
One of the parties was still in a valid marriage with someone else at the time of the marriage ceremony.
- The relationship is prohibited by law; you may not marry a direct descendant, or your sibling. The same prohibition applies to legally adopted relationships.
- The marriage did not comply with the legal requirements for a valid marriage.
- One, or both, parties were too young to get legally married.
- If you were not mentally capable of understanding the nature and effect of a marriage ceremony, the marriage is also void.
- A party to the marriage did not give the required consent.
If one of the parties acted under duress or fraud, the marriage is void. The court will interpret “duress” strictly when considering an application for nullity. If you consented due to undue pressure from your family, or your culture it may mean that you did not consent freely to the marriage.
If you didn’t know the true identity of the other person, the marriage is void. In essence it means you didn’t consent to marrying that person.
If you didn’t realize that you are actually entering into a marriage ceremony, the marriage is void. For example, if the ceremony is conducted in a language that you don’t understand and the ceremony is different to the custom that you are familiar with, it can be successfully argued that you didn’t consent, because you didn’t comprehend what was happening.
The decree is effective immediately. Both parties will revert back to “never validly married” status. In annulment cases the court cannot make any parenting or financial orders. You can approach an attorney to advise you on what to do if you seek parenting or financial orders. You may be in the same situation as parties to a de facto relationship.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.