As Johnny Cash and June Carter sang in their hit song ‘Jackson,’ “We got married in a fever, hotter than a pepper sprout.” But what if that fever has run its course, and you want to separate? Do you get a divorce, or can you have the marriage annulled?
Let’s unpack the differences between a divorce and an annulment and the criteria for each type of marriage dissolution, so you can choose the right one for your separation.
What is a divorce?
Divorce is the termination of a legally valid marriage. Generally, the couple would be married for two or more years. For the Family Court to consider your divorce application, you must prove that you have been living as a separated couple for at least 12 months.
If you’ve been married for less than two years, you will be required to attend a separation counselling session to see if reconciliation is possible. If, after counselling, you still wish to divorce, you can (on the basis of the cousnellor’s certification of completion of that counselling) start divorce proceedings.
What is an annulment?
An annulment, also referred to as a decree of nullity, declares the marriage invalid even if a marriage ceremony took place. In other words, it’s as if the marriage never happened.
Depending on the relationship dynamics, arrangements around child custody, child support and the division of property may still apply, in respect of a void marriage, just as it does in a divorce.
Declarations of nullity (annulments) are granted in the following circumstances:
- One or both of the parties were already married at the time. Bigamy is illegal in Australia and immediately nullifies a second marriage.
- The married couple are blood relatives.
- The marriage celebrant is not an authorised officiant.
- One or both parties are underage. You must be 18 years old to get married in Australia. However, 16-18 year olds can request court approval to marry.
- There was a lack of consent. For example, one or both of the parties were forced into the marriage under duress or tricked through a fraudulent act such that they did not understand the nature of the marriage ceremony.
A marriage cannot be declared a nullity (annulled) on the following grounds:
- non-consummation of the marriage
- never having lived together
- family violence
- other incompatibility situations
There are no time limits on applying for an declaration invalidating a marriage. However, the sooner you apply for annulment after the marriage ceremony or upon discovering information that renders the marriage invalid, the better (as any delays are likely to require explanation).
How to proceed with a divorce or application for a declaration of nullity
Declarations of nullity and divorces are granted by the Federal Circuit and Family Court of Australia. They can be complex legal processes, especially if there is property, multiple assets and children involved. In some states, for example, a divorce may also invalidate any Wills created during the marriage.
While you can initiate a divorce or annulment process yourself, it’s advisable to hire a family lawyer to help you understand the requirements, process and potential pitfalls of each form of marriage dissolution.
If you have been served divorce or annulment papers and want to contest it, you should file a Response to Initiating Application form with the Court, along with an affidavit and documents that support your position opposing the application. You will also need to present these facts at a court hearing that typically takes place 42 days after filing your application.
BGM Family Lawyers is a family law firm serving the Gold Coast. We’ve helped many couples navigate the complexities of a separation. To discuss your situation with one of our family law practitioners, call 1300 BGM LAW, email info.bgm@bgm.legal or fill in this form,
