It is very common in family law matters after parties have dealt with the parenting, child support, and property aspects of their matters to then file a Divorce Application. You can read more about divorce proceedings in my article “How to get divorced and solutions to common issues”. But what if divorce isn’t enough, what if you want the marriage to be annulled?
The Court is reluctant to make nullity decrees where a wedding occurred and it is often misunderstood what the effect of a nullity/annulment is. A divorce order dissolves a marriage, whereas a nullity decree makes it so the marriage is void/invalid/never happened.
Section 23B of the Marriage Act 1961 deals with marriages solemnised after 20 June 1985 (when the law was amended) and says a marriage is void if:
- Either party was married to someone else.
- It involves a prohibited relationship which is defined as between a person and an ancestor or descendant of the person or between 2 siblings whether whole or half blood. This also includes adopted children.
- Does not comply with Section 48, which states that you must give notice of your intent to marriage (not later than 1 month and not earlier than 18 months).
- Consent is not real consent because:
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- Duress or fraud; or
- A party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
- The party did not understand the nature and effect of the ceremony or
- Either of the parties is not of marriageable age.
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A Court will not declare a marriage is invalid because the marriage was never consummated, the parties never lived together, family violence, or another incompatible situation.
In a recent case, the Husband sought a nullity submitting he was subject to pressure from his uncle.
In an affidavit filed by the uncle, he agreed that he told his nephew that all the arrangements had been made. He particularly made it clear that he (the uncle) would not go back on his word given to the Respondent’s family, that the marriage would take place. The Judge noted it was to the uncle’s credit that he is now prepared to acknowledge that his behaviour in this respect was such that it overbore the will of his nephew at the time the marriage was entered into.
Ultimately, the Court was satisfied that the Husband was under duress and declared the marriage void because:
- He was subjected to strong feelings of family loyalty, and religious and cultural beliefs. He felt that his uncle was entitled to his obedience.
- He was financially dependent on his uncle who was offering him employment and sponsoring him.
Thus his consent was not true, full and informed consent.
If you have recently separated from your spouse or are considering filing for divorce or a nullity, please contact our office on (02) 4944 3322 to make an appointment with one of our family law solicitors.
