Divorce, Nullity and Annulment

28th May 2015

By Lisa Wagner

Divorce, nullity and annulment are words that are often used interchangeably by people seeking to end their marriages. In Australia divorce, nullity and annulment have very different legal meanings and each of these avenues must be approached in very different ways.

Do you know the difference?

Divorce

Divorce marks the legal end to your marriage. It dissolves a valid marriage according to civil law. Since the Family Law Act 1975 established the principle of a no fault divorce the only ground for a divorce in Australia is the irretrievable breakdown of the marriage. Long gone are the days of private investigators peering over backyard fences to prove infidelity. Now, you simply need to establish that you have been living separately and apart (even if under the one roof) for at least a period of twelve months prior to filing an Application for Divorce.

Parties are regarded as living separately and apart under one roof when they separate if they continue to physically live in the same home. This may occur because financially they cannot afford to separate and maintain two separate homes or because there are children of the marriage who would be to disadvantaged at that time by having their parents live separately.

When parties live separately and apart under one roof and make an Application to the Court for a Divorce they are required to provide extra information. This information is contained in an Affidavit. The information in the Affidavit satisfies the Court that there has been a change in the marriage and the parties have separated. It is also sometimes necessary that an independent third party provides a supporting Affidavit which sets out what they knew about the parties separation. Some of the information required in the Applicant’s Affidavit includes:

  1. What changes have taken place in respect of sleeping arrangements, such as no longer sharing a marital bed and now sleeping in separate bedrooms or in separate beds.

  2. How there has been a reduction in shared activities or family outings, such as not attending “family lunches” with each party’s extended families or parents taking turns to take the children on outings but not going on those outings together as a family.

  3. How the parties have reduced undertaking household responsibilities for each other, such as cooking and washing laundry only for themselves.

  4. Whether there has been some division of finances, such as each party opening and operating their own separate bank account and using this money to meet their personal costs.

  5. Whether you have told family and friends of your separation.

  6. Why you have continued to live in the same home after separating and whether you have any intentions of changing those living arrangements.

  7. Any government departments you have advised of your separation such as Centrelink or the Child Support Agency.

  8. The arrangements made for any minor children whilst you have been living under the one roof.

The Court is interested to know what care arrangements have been put in place for children following separation and whether the parties are contemplating any changes to those arrangements after obtaining their Divorce. A child of the marriage includes:

  1. any child of you and your spouse, including children born before the marriage or after separation; or

  2. any child who was treated as a member of your family prior to separation such as an adopted child, step-child or foster child.

Some of the issues surrounding care arrangements for each child that are considered relevant by the Court include:

  1. Where the child lives and who the child lives with, such as new partners, grandparents, other children or an independent third party like a housemate. If a child lives with both parents in a “shared care” arrangement then information should be provided in respect of both homes.

  2. Whether one party spends time with and/or communicates with the child but they do not actually live with that person.

  3. Who financially supports the child and in what way.

  4. Whether the child is healthy or suffers from a health condition and what treatments (if any) the child is receiving.

  5. How the child is being educated and how they are progressing with their education.

  6. Any other matter which the Applicant believes the Court ought to know about the child.

Nullity

Asking the Court for a decree of nullity is asking the Court to find that there never was a valid marriage. The Court can only make a finding that there never was a valid marriage in very limited circumstances. These circumstances are:

  1. That the couple were too closely related to be allowed to marry. Details of what relationships are regarded as “too close” are contained in the Marriage Act 1961. In recent years these rules have been relaxed so now aunts, uncles and cousins are free to marry each other.

  2. That the actually marriage ceremony was a fake. This may happen if:
    2.1.  A completed Notice of Intended Marriage form, which is required by law, is not given to a marriage celebrant at least one month before the wedding or is given more than eighteen months before the wedding.
    2.2.  An unauthorised celebrant performs the marriage. Only an authorised celebrant can legally perform a marriage. There are three kinds of authorised celebrants being Commonwealth-registered marriage celebrants, Ministers of religion of a recognised denomination who perform religious ceremonies and State officials who perform civil ceremonies.
    2.3.  The marriage took place overseas and was not recognised as valid under the law of the country in which it took place at the time it took place and/or the marriage would not have been recognised as valid under Australian law if the marriage had in fact taken place in Australia.

  3. That at least one of the parties did not provide a real consent. The types of things that enable a party to prove their consent was not forthcoming include:
    3.1.   Where there was a mistake as to the identity of the other person or a total lack of understanding as to what the ceremony actually was; or
    3.2.  One of the parties did not have the mental capacity to understand the nature and effect of the ceremony; or
    3.3.  The marriage was obtained by duress or fraud.

  4. That one of the parties was not of marriageable age, which is defined in the Marriage Act 1961as being eighteen (18) years of age. Permission to marry after the age of sixteen (16) years may be obtained from the Court.

  5. That the marriage was bigamous i.e. because one of the parties was already married to someone else at the same time.

Annulment

An annulment is most widely understood as being a religious declaration. Broadly speaking an annulment recognises that even though a marriage was valid (and even if children are borne to that marriage) the union or bond of the marriage did not come into being. This can be the case even if there is a great deal of love, commitment and genuineness in the marriage.

An annulment does not have any effect in civil law i.e. it is not a divorce.

An annulment is a request made to a religious body asking that religious body to find that at least one of the parties to the marriage lacked the capacity to enter into the sacred bond or union of marriage. In this process the Church, Synagogue or other religious body focuses on somewhat different considerations including the level of the parties’ maturity at the time of the marriage, their ability to act responsibly and independently, their level of freedom and their ability to resist outside influences.

In some religions it is also necessary to apply for a “religious” divorce which is recognised by the religion in addition to applying for a Divorce through the Court. In Islam this is known as talaq and in Judaism as a get. These religious divorces are granted by a religious body upon request but do not have any effect in civil law i.e. it is not a recognised legal divorce.

If you would like to know more about divorce or want to talk about the possibility of being successful in securing a declaration of nullity from the Family Court, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing enquiries@familylawyersdw.com.au to arrange a confidential discussion. We guarantee that we can help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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