Applying For A Decree of Nullity
What is a Decree of Nullity?
Ultimately, it is a Court Order which says that there was never a valid marriage, even though a marriage ceremony has taken place.
What is the difference between a Divorce Order and Decree of Nullity?
The difference is that a Divorce Order has the effect of ending a valid marriage, however the marriage is not found to be void as is the case with a Decree of Nullity.
The reason why some client’s may seek a Decree of Nullity instead of a Divorce Order is often do with their religious beliefs regarding the dissolution of a marriage.
Applications for a Decree of Nullity are quite rare. This is because the Courts are only able to declare a marriage invalid on very specific grounds. This is different from a Divorce Order where there is only ground, namely, the irretrievable breakdown of marriage proved by 12 months’ separation.
What grounds constitute a Decree of Nullity?
The Courts may declare a marriage invalid on any of the following grounds:
One of the parties was already married to someone else at the time of the ceremony;
The parties are in a prohibited relationship (e.g. the parties were too closely related to be allowed to marry);
The parties did not comply with the formal requirements for a valid marriage in Australia;
One or both of the parties was not of marriageable age; or
One or both of the parties did not give their real consent to the marriage, because:
One of the parties’ consent was obtained by fraud or duress;
One party did not know the true identity of the other party;
One party did not understand the nature of the ceremony; or
One party was mentally incapable of understanding the effect of the marriage ceremony.
It is important to keep in mind that there are no other grounds available for a Court to declare a marriage invalid. For example, the Court will not declare a marriage invalid because of non-consummation of the marriage, family violence or any other incompatibility situations.
How do I apply for a Decree of Nullity?
To make an application for a Decree of Nullity, you must file the following documents with the Family Court:
An application using an Initiating Application (Family Law) form;
A copy of your marriage certificate; and
An affidavit (a sworn document by you outlining facts to support your Application).
It is always prudent to engage the services of a Solicitor to assist you with the drafting of these documents.
If you are uncertain as to whether you should apply for a Divorce Order or a Decree of Nullity first, you should file your application for a Decree of Nullity before any application for a Divorce Order.
This because under Section 52 of the Family Law Act 1975, if both an application for a Decree of Nullity and an application for a Divorce Order are both before the Court, the Court is prohibited from making a Divorce Order unless it has dismissed an application for a Decree of Nullity of marriage first.
This article was written by Vizzone Ruggero & Associates solicitor, Danielle Rosano. If you have any question for Danielle or if you would like to discuss your matter with Danielle Rosano or any of our family law team, including an Accredited Family Law specialist, please contact us on 02 9667 1271 or firstname.lastname@example.org