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In Australia there are very few circumstances where the family court will allow a marriage to be annulled. In fact there have been just three annulments granted so far this year.
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What is an annulment?
An annulment is very different to a divorce (which acknowledges that a marriage existed) as it actually finds that the marriage is void and that the ceremony had no legal effect (so essentially the marriage never existed).
How do you get an annulment?
To have a marriage annulled you need to apply to the family court for a decree of nullity. However, it is only in very rare circumstances that the court will grant a decree of nullity. These circumstances include:
- The marriage celebrant was not authorised to perform the marriage.
- Bigamy – one of the parties was already married.
- The parties were not of legal age at the time of the marriage – in Australia the legal age is 18 however the court can grant people between 16 and 18 years of age permission to marry in exceptional circumstances.
- One party did not consent – if there was fraud or duress, or one party was mentally incapable of understanding the nature and effect of the ceremony.
This year the Family Court of Australia has granted a decree of nullity on only three occasions. On each of these occasions it was found that at the time of marriage one party was legally already married to another person.
Case in point
Meena & Meena [2021] FamCA 161 (26 March 2021)
Marriage annulment successful
In this case, within days of the wedding the husband found that his wife had been unfaithful which led to them separating. He felt ashamed and embarrassed and was concerned that cultural ridicule would follow. To cope, he focused on other things and moved on with his life (without filing for divorce or applying for a decree of nullity).
He moved on with his life, re-partnered and remarried (forgetting that he was still legally married to his former wife).
Unfortunately this new relationship didn’t work out either and he applied for a decree of nullity. As his first marriage was still legally in existence, the court found his second marriage to be null and void and granted the decree of nullity.
Pen & Vun [2021] FamCA 294 (13 May 2021)
Marriage annulment unsuccessful
In this case, the parties travelled from Australia to their hometown of China where they married. The husband alleged that his consent to marry was not proper because of duress.
To support his argument, he provided an email from the marriage celebrant that stated that the husband had expressed to him that he did not want to get married and that the wife would not leave the marriage celebrant’s office until the husband agreed to marry her.
Despite the email, the court was not satisfied that at the time of the marriage the husband participated in the ceremony because of some overbearing force.
As a result, the court did not grant a decree of annulment and his application was dismissed.
Need advice?
These two cases illustrate that unless there is bigamy, a decree of nullity is much more difficult to obtain as opposed to a divorce. If you are looking at obtaining a divorce or decree of nullity, the team at Lakey Family Law has extensive experience in this area and can assist and advise you.
