When some people hear that a marriage has been annulled, some of them simply assume that it is a fancy word for divorce and means exactly the same. However, experienced family law firm Davies Family Lawyers advise that to get your marriage annulled, the process, legalities, and criteria surrounding it would be completely different from those that apply to a divorce.
For a start whilst the legal framework that applies to both divorce and annulment is laid out within the Family Law Act of 1975, if you were to look them up in the Act, you would find several significant differences.
For a start, the legal document that certifies that a marriage has been annulled is called a Decree of Nullity. What that decree will state is that the marriage in question did not exist legally and regardless of whether a bride walked down the aisle in a white dress, a wedding service took place, and confetti was thrown, the marriage is void, and in the eyes of the law, never existed.
To some, this might sound confusing given that there may even have been officials present conducting the marriage, but the point here is that even though they may have genuinely believed that they were conducting a legitimate marriage ceremony, there were one or more reasons why it was not actually a legal marriage.
The normal circumstances in which this can occur is that one, or both, of the individuals who were ‘married’, did not have the legal right to do so. There are several reasons why that might the case, as follows:
- At least one of them was still legally married to another individual
- At least one of them were younger than the legal age to marry
- The relationship was one which is prohibited between two individuals e.g. siblings or parent and child
- At least one of them did not consent to the marriage or was forced into it via threats or intimidation, for example
- There was a case of mistaken identity and one of them believed they were marrying someone else
- At least one of them was not mentally capable of agreeing to be married
Whilst all of these point to actions taken by at least one of the parties, there is a final reason which may result in annulled marriage that may not have been anything to do with the actions of the couple. That is a scenario where the person conducting the marriage ceremony was not legally qualified to do so.
Now the couple could have been aware of this in which case they are culpable, but there have also been instances of couples being duped and then finding out to their horror, that they were never legally married.
Some of the other criteria that must be in place for a marriage to be annulled under Australian family law is that 1) At least one of the individuals needs to be an Australian citizen, or, 2) Must live in Australia and consider it their permanent home, or, 3) Have lived in Australia for a minimum of 12 months prior to the annulment application.
The application must be done in conjunction with the papers being served on the respondent if only one party to the marriage is making the application. If that respondent objects, they must cite their reasons for doing so in an affidavit, along with any evidence that shows that the marriage is, in fact, legitimate and that divorce is the legal route to end it, instead of annulment.