annulment and divorce are two legal ways to end a marriage
When a relationship is bound to end, some couples would typically get confused about what proper legal action to file to end the marriage. Oftentimes, parties would argue about having their marriage annulled rather than divorce. But what is the difference between divorce and annulment?
Annulment and divorce are two legal ways to end a marriage. In a divorce, couples are validly married. What they want to achieve is to dissolve the bond of marriage on the ground that they could no longer retrieve their married life.
To establish the irretrievability of marriage, couples only need to establish that they have been living separately for at least 12 months to be possibly granted with divorce. When granting a divorce decree, the couples can live back as single and remarry.
Filing for annulment is an application to declare the marriage as nulled and void, which means that there never was a valid marriage. Such application is quite unusual. Unlike divorce, a decree of nullity of marriage has a lot of grounds and may only be filed by one party.
Listed below are the grounds for annulment set out by the Marriage Act, which the initiating party should take into consideration.
- Incestuous marriage - This is a prohibited marriage that happens if the bride and the groom are related by blood. Examples would be a marriage between parents, grandparents, siblings, and offspring.
- Bigamous marriage – This is another prohibited marriage that happens when a person entering into a new marriage is validly married to another person.
- Marriage without consent – This happens when the marriage is contracted by fraud or duress or when there was a mistake as to the identity of the other party.
A daughter becoming pregnant cannot be considered as a valid instance to allow parents to coerce or force the daughter to get married; otherwise, it may be considered as a form of duress or threat.
- Fraud may also happen if one party is pretending to be rich just to contract the marriage. Instances such as mistakenly marrying the other twin or marriage by proxy can fall under a mistake of identity.
- Unsoundness of mind – The marriage may be nulled and void from the very beginning if one of the party has taken advantage of the other party’s mental illness to consent to a marriage.
- Non-age – Under the Australian Law, couples should be at least 18 years old to validly enter into marriage. Young couples who wish to get married should seek a parental consent or court approval; otherwise, the marriage may be void from the beginning.
- Psychological incapacity – This may be justified if the one of the party has failed to fulfil the marital and parental obligations.
In order for a marriage to be valid in Australia, couples should be able to satisfy the formal requirements of a valid marriage. The law provides that the ceremony must be conducted by a clergy or licensed solemnizing officer, the couples should also comply with the paperworks, and that they should have consented with the marriage by freewill in the presence of two witnesses. A marriage that is validly celebrated in another country is also valid in Australia.
The Australian divorce system does not need to find who between the couples are at fault. However, compared to annulment, divorce process may be much more complicated especially if the marriage has procreated children or if the reason for divorce is family violence.
The laws for annulment may also differ from one state to another. In all matters concerning marriage, separation, divorce, or annulment, always seek for a timely advice from family lawyers to be given a clarity and understanding before proceeding with the case.
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.