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How to get a marriage annulment in Australia: A legal guide
When you are thinking about ending a marriage in Australia, you probably think of divorce. However, there is another option available: annulment of marriage.
By Stefanie Costi, Lawyer at Watts McCray.
In this blog, we’ll explain what it means, how it differs from divorce, why it might be a choice worth considering, and what steps you need to take.
What is an annulment of marriage?
Essentially, it is an order made by the Federal Circuit and Family Court of Australia stating that your marriage never existed in the eyes of the law, even if you had a wedding ceremony.
How does a marriage annulment differ from divorce?
Divorce ends a marriage that was valid, while an annulment says the marriage was never valid in the first place.
Who can apply for an annulment of marriage?
To apply for a marriage annulment in Australia, either you or your spouse must be an Australian citizen, or you both must live in Australia and think of it as your permanent home. Alternatively, you should have been residing in Australia for at least one year before applying.
When can I apply for an annulment of marriage?
To be eligible to seek an annulment of marriage in Australia, you need to meet specific legal grounds. These include:
Prior marriages
If you or your spouse were already married when you married each other, your marriage could potentially be annulled.
Prohibited relationships
If you and your spouse are related in a way, such as being siblings or parents and children, annulment might be possible.
Not complying with the procedural requirements
If you and your spouse did not follow the country’s rules when you got married (e.g. not having two witnesses or an authorised celebrant), annulment could be an option.
Being underage
If you or your spouse were too young to marry without special permission pursuant to Section 12 of the Marriage Act 1961, your marriage might qualify for an annulment.
Lack of real consent
If you or your spouse did not genuinely consent to the marriage due to force, lies, mistaken identity, or not understanding what was happening due to mental incapacity, an annulment could be considered.
When will the Federal Circuit and Family Court of Australia not annul my marriage?
The Federal Circuit and Family Court of Australia will not annul your marriage if you are seeking an annulment because you have not had sexual relations, because you never lived together, because you faced family violence, or because you had compatibility problems in your marriage. An annulment is strictly granted when the marriage should never have proceeded in the first instance, not because you regret the marriage.
How do I apply for a marriage annulment in Australia?
Here is a step-by-step guide:
1. Gather documentation
Collate all the required paperwork you need, such as your marriage certificate, evidence supporting your reasons for wanting an annulment, and any other relevant records.
Create a timeline of events, including what occurred leading up to your marriage, on your wedding day, and afterward, including evidence from witnesses to these events.
2. Consult an experienced family lawyer
Find a lawyer who practices exclusively in family law. They will assess your case and determine if you qualify for an annulment. They will also guide you through the entire process, provide you with options, and can answer all your questions.
3. Prepare and file Court documents
Your lawyer will assist you in completing an Initiating Application (Family Law) and drafting an affidavit for the Federal Circuit and Family Court of Australia.
Once the documents are ready, they must be filed in the Federal Circuit and Family Court of Australia. There is a filing fee that must be paid. You can find out what the filing fee is here.
4. Serve the Court documents on your spouse
After filing your court documents, you need to serve your spouse with copies of the following court documents:
- Your Initiating Application (Family Law)
- Your Affidavit
- The Court brochure ‘Marriage, Families and Separation’ (downloadable here).
- An Acknowledgment of Service form (downloadable here).
5. Attend court
As part of the annulment process, you will need attend court for a hearing. This date will be set after you file your Court documents, and your spouse must be informed of this court date.
FAQS
Is there a time limit for applying for a marriage annulment?
No, there is no time limit.
If the Court grants my annulment, when does it take effect?
Once the Federal Circuit and Family Court of Australia approve your annulment application, it becomes effective right away.
Obtaining an annulment in Australia is not straightforward, but understanding the process is essential.
