What is the difference between an annulment and a divorce?

What happens if you get married under duress? Under what circumstances can you get out of your marriage vows without having to follow the time-consuming divorce process?

A court in Sydney recently found that a marriage between two people was void because the husband was under such duress when he married, that his consent was not real consent. 

The husband only married the wife because she promised to have an abortion if he married her (and the husband felt so strongly about not wanting a baby that he agreed to go through with the marriage).  This case is unusual because while many people wish to have their marriages annulled (for religious or private reasons), it is very rare that such an application is granted.

At Armstrong Legal, we get many inquiries from clients who feel they made a mistake getting married, or on reflection feel that they were pressured into marriage. The clients sometimes want to get out of a marriage without waiting the usual 12 months of separation before filing for divorce. There may be religious or other reasons why people come to us seeking an annulment.

Let's look below at the various ways you can have your marriage annulled (declared void, as though you were never married):

• You made a mistake. This mistake is not in the choice of bride or groom, but it could be a mistake as to the nature of the ceremony.
• Your consent was not real consent given freely, such as the man in our example case above.
• You were coerced into getting married on the day of the marriage (i.e. not pre-wedding nerves, but feeling under an overbearing force at the actual time of the marriage, to go through with it against your real will);
• You felt the other person committed fraud when they married you. This goes beyond feeling defrauded because you thought you were marrying a millionaire and learned they were really a kitchen hand; it is fraud as to the identity of the person.
• You married someone younger than 18 without the prior permission of a judge;
• The marriage is not between a man and a woman (for example, if it turns out that two men are married to each other)
• You married someone in a prohibited relationship with you, such as parent, or full brother or sister.
• You married someone who has been previously married but never divorced from that earlier marriage (ie your spouse has committed bigamy);

Annulment or divorce — what’s the difference?

So, is it better to just go through a divorce or to seek an annulment of the marriage?

The divorce process is somewhat lengthy as you must have been separated for a year before signing and filing your divorce application. Sometimes you can file supporting documents that you were separated under one roof during that year. This is not always accepted by the court and we can assist you with legal advice about your prospects in this regard.

However, other than the time frame, divorce is relatively cheap ($840 for full fee paying clients and less for others) and simple (you can even do it online or on the spot in our offices). The hearing can take minutes; you don’t even have to turn up to court in many cases.

An application for nullity, on the other hand, can be made the day after the wedding and there is no waiting time. However, the legal work will be extensive (and therefore costly). It will usually involve filing an application and supporting affidavit, serving that on the other side, considering their response and affidavit, attending court for a hearing on the evidence (this may be 3-8 months later and could go on for up to a day) and paying for barristers.

All this and you may still not even succeed. Often, such clients will simply wait a few more months and choose to get divorced in the usual way without going through the extra cost, work and worry of an application for annulment. At the end of the day, many people simply want to get on with their lives and not fight a legal test case on a technicality.