Understanding a Decree of Nullity Under Australian Family Law

In Australian family law, there is a distinction between a divorce and a decree of nullity:

• Divorce ends a valid marriage and can only be granted on the ground of irretrievable breakdown, proven by at least 12 months of separation, as outlined in the Family Law Act 1975 (Cth).
• Decree of Nullity declares that a marriage was never valid, meaning there was no lawful marriage to dissolve.

Grounds for a Decree of Nullity

Under Section 51 of the Family Law Act 1975 and Section 23B of the Marriage Act 1961, a marriage is deemed void on specific grounds, which are exhaustive. A court may declare a marriage invalid if:

1. One Party Was Already Married

   • At the time of the marriage ceremony, one party was legally married to someone else.

2. Prohibited Relationships

   • The parties were in a prohibited relationship, such as marrying a direct ancestor, descendant, or sibling, even if the relationship is by adoption.

3. Failure to Comply with Marriage Laws

   • The parties did not meet the legal requirements of the jurisdiction in which the marriage took place.

4. Underage Marriage

   • One party was not of legal age to marry under Australian law, and the necessary court approval was not obtained.

5. Lack of Genuine Consent

   • One party did not give true consent to the marriage due to:
     • Duress or Fraud: Consent was coerced or obtained through deceit.
     • Mistake: A party was mistaken about the identity of the person they were marrying or the nature of the marriage ceremony.
     • Mental Incapacity: A party was unable to understand the nature and effect of the marriage ceremony due to mental incapacity.

Situations That Do Not Constitute Grounds for Nullity

The court will not declare a marriage invalid based on:

• Non-consummation of the marriage.
• The couple never living together after the ceremony.
• Family violence during the marriage.
• Incompatibility or irreconcilable differences.

Relevance of a Decree of Nullity

A decree of nullity is distinct from a divorce because it addresses the validity of the marriage itself. It may be sought in circumstances such as:

• Discovering that one party was already married.
• Realising the marriage was entered into without genuine consent.

Legal Process for a Decree of Nullity

1. Filing an Application

   • Applications for a decree of nullity must be lodged with the Federal Circuit and Family Court of Australia.
   • The application must clearly outline the grounds for seeking the declaration and provide supporting evidence.

2. Court Hearing

   • The applicant must attend a court hearing to present their case.
   • The court will consider the specific circumstances of the marriage and the evidence provided.

3. Outcome

   • If the court is satisfied that the marriage is void under the Marriage Act, a decree of nullity will be granted.
   • Once granted, the marriage is legally recognised as never having existed.

Key Considerations

• A decree of nullity has no effect on parenting arrangements or property settlements. These matters are addressed separately under the Family Law Act 1975, regardless of whether the marriage is void or valid.
• If you are unsure whether your situation qualifies for a decree of nullity, seeking advice from a family lawyer is essential.

Final Thoughts

A decree of nullity serves a specific purpose within Australian family law by addressing marriages that were never legally valid. Understanding the grounds and the legal process ensures that individuals can seek the appropriate remedy for their circumstances. For advice on annulments, separations, divorce, and related matters, consulting an experienced family lawyer can provide clarity and guidance.