There are many reasons (including religious or financial) where separating parties may want to get a marriage annulment - instead of divorce.  If you have separated but do not wish to divorce you may be able to apply for a Decree of Nullity. This Decree is a Court Order which effectively states that there is no legal marriage between the parties. Even in circumstances in which a marriage ceremony has occurred and declares any union null and void between the parties.

Grounds for a Decree of Nullity if you want to get a marriage annulment 

Section 51 of the Family Law Act 1975 (Cth) and Sections 23 and 23B of the Marriage Act allow for a decree of nullity to be made within the Court’s discretion should it determine that the marriage is invalid. The Court can make this Decree on the following grounds:  Firstly, when one of the parties got married, they had already entered into a marriage with someone else.Secondly, the parties are in a prohibited relationship.Thirdly, the parties did not comply with the marriage laws of the place where they got married. Finally, the marriage lacked real consent from either of the parties because:a. someone obtained their consent by duress or fraud, orb. One party mistakenly believed they were marrying someone else. Or the nature of the ceremony, orc. one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

Unsuccessful applications 

Whilst it is up to the Court’s discretion to grant a Decree of Nullity, it is unlikely an application will be successful if it is based upon the following grounds:  Firstly, non-consummation of the marriage.Secondly, never having lived together.Thirdly, family violence.Finally, other incompatibility situations.

Timeframes for this decree 

Unlike divorce applications which are subject to a 12 month separation period, a Decree of Nullity can be made at any time after separation and is effective immediately. If you believe you have the grounds to get a marriage annulment, we highly recommended that you seek legal advice before filing any documents with the Court. Please contact our team on 02 9891 6388 for a confidential discussion.

New South Lawyers’ communications are intended to provide commentary and general information. To that end, people should not rely on this communication as legal advice. Accordingly, they should seek formal legal advice for matters of interest that arise from it.

To find out more, chat with a member of New South Lawyers' Family Law Team today.