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A marriage is a type of contract between the bride and the groom. If you are getting married, you need to freely agree to that arrangement. You must not be tricked, pressured or forced to marry. Annulment happens when the court decides that there was no legal marriage, even though there was a marriage ceremony between the parties. If the court grants an annulment, the marriage is considered to be void.
In this article, I am trying to provide the information that you need to know about the marriage annulment in Australia.
1. When can you apply for a marriage annulment in Australia?
You can apply to the court to have your marriage annulled in the following circumstances:
If you were tricked or forced to marry someone;
if you have agreed to marry under duress;
If you or the other party to the marriage was under 18 years of age at the time of the marriage;
If you were unable to understand what the marriage ceremony was;
If one or both the parties of the marriage was already married to someone else;
If you are in a prohibited relationship. It means that the person you married is a close relative (parent, grandparent, child or sibling).
If your marriage was not in compliance with the laws in the place you were married.
If you had mistaken as to the identity of the person who you were marrying;
If you or the other party was mentally incapable of understanding the nature and the effect of the marriage ceremony.
2. When the court will not grant an annulment order?
The Court will not declare a marriage invalid on the following grounds:
the marriage has not been consummated;
the parties have never lived together as a couple;
there is family violence involved in the relationship;
the couple is incompatible.
If you are experiencing the above situations, your remedy will be applying for a divorce.
3. How do you apply for the annulment of a marriage?
To apply for an annulment of marriage in Australia, you or the other party that you are married to must fit in one of the following categories:
one of you must be an Australian citizen, or
one of you must live in Australia and regard Australia as your permanent home, or
one of you must ordinarily live in Australia and have done so for at least 12 months before the annulment application.
You have to make the applications for the annulment of your marriage in the Family Court.
To make the annulment application, you will need to pay a filing fee. Before you make the application, It is worth checking if you are entitled to a reduced fee or refund.
4. What is the procedure for applying for a marriage annulment?
To apply for the annulment of the marriage, you must file an initiating application. You will also need to prepare an affidavit stating:
the facts relied on to have the marriage annulled, and
details of the type of marriage ceremony performed.
Service of the initiating application is the next important step. Service is giving your ex-partner a copy of the paperwork you filed in court. The purpose of the service is that the other party to know about the court proceedings. You must arrange for the other person to be ‘served’ with the application for a marriage annulment.
You cannot personally serve the application to your former partner. However, you can serve him/her by mail or get someone else to serve the documents for you. The family law courts have special rules about the service of documents and forms. You can submit those forms to prove that the other person was served with the application.
The other party has the right to file and serve an affidavit in response to your application. In that affidavit, he/she will say if they disagree with the content of your application. The other party will have 28 days to file his/her response. If he/she chooses not to file a response, the court will hear your application without his/her presence. The court will entertain your application as long as it is satisfied that the other party was properly served with your application.
After the hearing of your application, the judge will make a decision based on the evidence presented by you. If the court finds that the grounds for an annulment are met, it will grant you a marriage annulment order.
5. What happens to the property settlement and children’s custody in case of marriage annulment?
The fact that you have got your marriage annulled, does not have anything to do with the issues relating to your property settlement or the custody of your children. It has to be dealt with separately, as in the case of a divorce.
The property settlement must be done within 12 months of the date of the annulment. If you cannot resolve your property issues and need to go to court to decide, you must file a property settlement application, separate from your annulment application, within 12 months of the date of the annulment. In case you miss that 12 months’ mark, you have to apply to the court for special permission.
If you cannot agree on the custody and care of your children, you will have to deal with the issues in a similar way as in the case of a divorce.
If you need more information on Annulment of Marriage or need legal advice or assistance regarding family law matter, visit us on www.lawcircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au We are here to make your legal journey easier.