Divorce or Annulment of Marriage – What is the Difference – When Will the Court Annul a Marriage

18/09/2019

Divorce

The Family Law Act 1975 (Section 48(1)) provides that for a Divorce Order in relation to marriage shall be made on the grounds that the marriage has broken down irretrievably and this will require the spouses to have been separated for at least 12 months.  An order for Divorce made on the basis that there was in existence a valid marriage.  That is not the case with annulment of marriage. 

The Family Law Act 1975 provides (Section 51) that an Application for a Decree of Nullity of Marriage shall be based on the ground that the marriage is void.  If the Court makes a Decree of Nullity of Marriage the outcome is as if the marriage had never taken place. The parties to the marriage do not need to have been separated for 12 months.

Marriage Act – When Will a Marriage Be Void

The Marriage Act 1961 (Cth) provides that a marriage will be void if one or more of the grounds set out in Section 23B are found and exist, where the reasons set out in Section 48 exist, or the consent of either party to being married is not a real consent because that party was mistaken as to the nature of the ceremony performed.

Section 23B Grounds

1. A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
   1. either of the parties is, at the time of the marriage, lawfully married to some other person;
   2. the parties are within a prohibited relationship; 
   3. by reason of section 48 the marriage is not a valid marriage; 
   4. the consent of either of the parties is not a real consent because:
      1. it was obtained by duress or fraud;
      2. that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
      3. that party did not understand the nature and effect of the marriage ceremony; or
   5. either of the parties is not of marriageable age; and not otherwise.
2. Marriages of parties within a prohibited relationship are marriages:
   1. between a person and an ancestor or descendant of the person; or 
   2. between 2 siblings (whether of the whole blood or the half-blood).

Recent Case Law

The Family Court of Australia was required to determine an Application for a Decree of Nullity of Marriage in the case of Thang v Lua (2019) Family Court of Australia

1 April 2019.  In that case the facts were as follows:

• The Applicant for a Decree of Nullity was a 20 year old overseas student.  The Respondent was a 22 year old overseas student. 
• Both had Visas allowing them to study in Australia but the Visa of the 22 year old female was about to expire. 
• The Applicant and the Respondent lived together and sought advice from a Migration Agent.  The Applicant told the Immigration Agent that he did not want to be married but the Immigration Agent suggested that they apply for a De Facto Partner Visa to allow the Respondent to extend his stay in Australia.
• The Migration Agent suggested a Commitment Certificate be signed to the effect that the parties were in a de facto relationship and that this would support the necessary Application for further Visas allowing the Respondent to stay in Australia. 
• The Applicant and Respondent agreed to hold a celebration ceremony where they were to sign the Commitment Register to register their de facto relationship.  This event took place.  The Applicant had not met the Immigration Agent prior to this function.  The Applicant did not have good command of English and could not adequately read English documents. 
• The Immigration Agent presented documents to the Applicant and the Respondent to be signed.  The Agent did not explain the nature of the documents that they were signing.  The Agent did not say any of the vows and there was no exchange of rings.  Guests at the function were asked to sign as witnesses. 
• With the assistance of his sister the Applicant became aware that he had signed a Marriage Certificate as well as a Notice of Intention to Marry which had been backdated some months.

The Court found that the marriage was void (a nullity) because the consent of the Applicant was not real consent because he had mistaken the nature of the ceremony performed.  The Court also found that the Celebrant did not say the words required to be spoken in a marriage ceremony as required by Section 45 of the Marriage Act.  The Court also found that the Applicant was mistaken as to the nature of the ceremony in that he thought it was the signing of an Application in relation to a de facto relationship and not a marriage ceremony. 

The marriage was annulled.  There was never a marriage. 

If you have any concerns regarding the validity of your marriage or are seeking to have your marriage annulled however are unsure of your rights, please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek timely advice.

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