Divorce or Nullity - When will a marriage be declared to be a nullity

11/07/2018

The Marriage Act of 1961 (Cth) sets out the law in relation to what is a “valid” marriage.  A marriage will be invalid when:

• Either of the parties at the time of the marriage were lawfully married to some other person;
• The parties are within a prohibited relationship (ie related by blood);
• By reason of section 48 the marriage is not a valid marriage because the marriage was not solemnized according to law i.e. there was an error or mistake in the marriage ceremony;
• The consent of either of the parties was not a real consent because it was obtained by duress or fraud or that a party was mistaken as to the identity of the other person or as to the nature of the ceremony;
• That a party was mentally incapable of understanding the nature and effect of the marriage ceremony; or
• Either of the parties was not of marriageable age and the appropriate approval of a Court had not been obtained prior to the marriage. 

In order to end a marriage there needs either to be a Divorce or Declaration of Nullity of the marriage.

Divorce

The Family Law Act of 1975 provides that:

• An Application under the Act for Divorce in relation to a marriage shall be based on the grounds that marriage has broken down irretrievably.
• The grounds of irretrievable breakdown of a marriage will be held by the Court to have been established and the Divorce Orders shall be made if and only if the Court is satisfied that the parties have been separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the Application for the Divorce Order.
• A Divorce Order shall not be made if the Court is satisfied there is a reasonable likelihood of cohabitation being resumed. 

Separation

Parties to a marriage may be held to have been separated notwithstanding that the cohabitation was brought to an end by the action/s or conduct of only one of the parties.

The parties to a marriage may be held to have been separated and to have lived separately apart notwithstanding that they have continued to reside in the same residence or that either party has rented some household services to the other.

The Act provides for and requires additional evidence in the Divorce Application if there has been a resumption of cohabitation and there has been a period of separation under one roof.

Divorce and Children

The Court must also be satisfied that there are proper arrangements in place for the children of the marriage or that there is some other reason to dispense of the requirement that the children are in a suitably arranged place and may still grant the Divorce.

A Divorce Application once granted and a Divorce Order once made, ends what was for the purposes of law, a valid marriage.

An Application for Nullity if successful leads to a position where the marriage was found not to have been a valid marriage under the Marriage Act.

Nullity – Void Marriage

There is one ground for a Decree of Nullity and that is that the marriage was void.

The Marriage Act 1966 provides and sets the rules in relation to what is a void marriage and they include:

(1)      A marriage that took place on or after 20 June 1977 and before the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

(a)      either of the parties was, at the time of the marriage, lawfully married to some other person;

(b)      the parties are within a prohibited relationship;

(c)       by reason of section 48 the marriage is not a valid marriage;

(d)      the consent of either of the parties was not a real consent because:

           (i)        it was obtained by duress or fraud;

(ii)       that parties was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)      that parties was mentally incapable of understanding the nature and effect of the marriage ceremony; or

                           (e)       either of the parties was not of marriageable age;

and not otherwise

Prohibited Relationships 

               (2)       Marriages of parties within a prohibited relationship are marriages:

(a)       between a person and an ancestor or descendant of the person; or

(b)      between a brother and a sister (whether of whole blood or half-blood).

If you have any concerns or doubt as to validity of your marriage or are contemplating divorce or separation from your spouse/partner or you wish or believe that you have grounds to have your marriage annulled please contact Richard Watson Senior Family Solicitor or his assistant Shereen Da Gloria to discuss your matter and seek advice to enable you to make an informed decision.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.