Applying for a Decree of Nullity

A decree of nullity is an order granted by the Family Court for cases where there is no legal marriage between two parties, even though a wedding ceremony may have occurred.

The Marriage Act 1961 (Cth) and the Family Law Rules 2004 outline the grounds that a party may use to apply for a decree of nullity, for which the Court may declare a marriage as invalid. These include:

• At the time of marriage, one party was already married to someone else.
• They are in a prohibited relationship.
• They were not compliant with the marriage laws in the place/area the marriage took place.
• One or both parties were not of a legal age to get married.
• Either one did not give their real consent to the marriage since:
  • the consent was obtained by duress or fraud,
  • either one was misguided as to the identity of the individual they were marrying or the nature of the ceremony, or
  • one party was mentally inept in understanding the nature and the effect of the marriage ceremony.

There are also grounds by which the Court will NOT declare a marriage as invalid. These include:

• Non-consummation of the marriage
• Never having lived together
• Family violence, or
• Other incompatibility situations

How to File for a Decree of Nullity

01. To file for a decree of nullity, a party must submit an Initiating Application (Family Law) form in two copies plus the original; an affidavit outlining the facts to have the marriage annulled along with information on the type of marriage ceremony performed; and a copy of the marriage certificate, if not already on file.

02. The applicant is responsible to serve the papers (the application, a copy of the supporting affidavit, the court brochure Marriage, Families and Separation and an Acknowledgment of Service form) on the other party as soon as possible by special service.

03. The respondent to the application may file a Response to Initiating Application (Family Law) form along with an affidavit to provide any facts they will use to oppose the application or if they believe the Family Court does not have the jurisdiction to hear the matter.

04. The Court will provide a hearing date within 42 days of receipt of the application if the respondent is in Australia. In the case where the respondent is not in Australia, the hearing date will be issued at least 56 days after the application is made.

What Happens if I Obtain a Decree of Nullity?

The immediate effect of a decree of nullity is the legal recognition that a marriage was void from the outset. This means that legally, the marriage is considered never to have existed, even if a wedding ceremony took place. Such decrees are granted under specific, restrictive conditions and are relatively rare.

On What Grounds is a Decree of Nullity Granted?

In accordance to the Federal Court and Family Court of Australia, a decree of nullity can be obtained on specific grounds, including:

1. One of the parties was already married at the time of the marriage.
2. The parties are in a prohibited relationship.
3. The parties did not comply with the laws in relation to the marriage in the place they were married.
4. Either party was not of a legal age to marry.
5. Either of the parties did not give their real consent to the marriage due to duress, fraud, mistaken identity, or mental incapacity

The court will not declare a marriage invalid on the grounds of non-consummation, never having lived together, family violence, or other incompatibility situations

The Court will NOT declare a marriage invalid on the following grounds:

• Non-consummation of the marriage
• Never having lived together
• Family violence, or
• Other incompatibility situations.

A few points to note regarding a decree of nullity

• An application for a decree of nullity is not subject to the 12-month separation period as is the case with divorce. 
• After a decree of nullity is granted by the Court, it takes effect immediately.
• You should seek legal advice regarding parenting and financial matters where a decree of nullity is granted. 

For more information about filing for a decree of nullity or if you would like to seek professional legal advice, please do not hesitate to contact My Legal Crunch through 0485 872 417 or via email at info@mylegalcrunch.com.