Order for Divorce or Declaration of Nullity of Marriage – What is the Difference?

15/02/2021

There are certain situations where a successful Application could be made to the Family Court or Federal Circuit Court of Australia for a Decree of Nullity of a Marriage.  There are other cases where the Application to the Family Court (or the Federal Circuit Court of Australia) will be for an order for Divorce and not for an annulment of marriage.  An Application for Divorce and an Application for Nullity are not identical.  The Court will not make a Declaration of Nullity if there is a valid marriage.  If there is a valid marriage the appropriate Application to be made to the Court, is an Application for Divorce.

What is the Difference Annulment and Divorce?

A Declaration of Nullity by a Court is a finding that there was no legal marriage between the parties even though a marriage ceremony may have taken place. 

When Will the Court Make a Declaration of Nullity? 

The Family Court of Australia or Federal Circuit Court of Australia may declare a marriage invalid on the following grounds:

1. One or both of the parties were already married (to someone else) at the time.
2. The parties were in a prohibited relationship. 
3. One or both of the parties were underage and did not have the necessary approvals.  
4. One or both of the parties was forced into the marriage under duress. 
5. That a party was mistaken as to the identity of the other party or as to the nature of the ceremony. 
6. That a party was mentally incapable of understanding the nature and effect of the marriage ceremony. 

When will the Court Not Make a Declaration of Nullity? 

The Court will not make a Declaration of Nullity on the basis of:

1. Non-consummation of the marriage.
2. The parties never having lived together.
3. Family violence.
4. Incompatibility situations. 

If a Declaration of Nullity is made, then the Court is declaring that the ceremony in which the parties may have participated did not result in there being a valid marriage recognised at law.  The parties were never married. 

Grounds for Divorce

If the parties are validly married and then do not wish to remain married, then one or both can make an Application to the Federal Circuit Court of Australia for a Divorce. 

In Australia there is one ground for divorce and that is, irretrievable breakdown of the marriage as evidenced by a separation of the parties for at least 12 months.  It is a non fault system.  An Application for Divorce is filed in the Federal Circuit Court of Australia.  The Application can be made jointly or by one of the spouses only.  The parties do not require permission from each other to make an Application for Divorce.

The Court will need the following evidence in support of the Divorce Application:

• Evidence that the parties are married (Marriage Certificate). 
• Evidence that the Court has jurisdiction – Australian Citizenship or Residency. 
• Evidence of a 12 month separation. 
• Evidence that proper arrangements are in place for the care, welfare and development of any children of the marriage.  

At Watson & Watson Lawyers our experienced Family Lawyers can assist you in relation to all divorce or annulment proceedings and related family law proceedings such as contact issues and financial/property settlement.  Do not delay in seeking the appropriate advice.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter 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.