There are criteria for entering a legal marriage. If the marriage fails, the spouses can apply for a divorce. However, what if the couple wasn’t in a legally valid marriage in the first place? In that case, the parties will face a legal annulment, which brings us to the discussion of “divorce vs annulment.”
Let’s explore the differences between a divorce and finding a marriage null and void.
Requirements for a legal marriage
There are several factors parties must satisfy to enter a marriage legally. Since 2017, same-sex couples have been granted the right to marry.
Neither party can be already married.
The parties cannot be related. This means the party must not marry a parent, grandparent, child, grandchild, brother or sister.
The parties must both be at least 18 years old. The Court may grant an exception in certain circumstances where one person is 16 to 18 years old.
Both parties must understand the concept of marriage and freely agree to enter the union.
Specific words must be used during the ceremony.
The parties must provide a notice of intended marriage form to an authorised marriage celebrant at least a month, but no more than 18 months, before the wedding.
The parties must be married by an authorised marriage celebrant.
Divorce vs Annulment
Annulment and divorce proceedings are similar in some ways. Child custody and property matters should be organised whether you’re pursuing a divorce or annulment. However, there are important differences. Here are the definitions of each.
Discover: What is Divorce in Australia?
Divorce
The divorce process is the legal dissolution of a marriage. Parties can only pursue a divorce after being separated for at least a year. One or both parties can pursue a divorce.
Annulment
If the Court determines that a marriage is invalid, the couple may not seek a divorce. Instead, they will be granted a decree of nullity or a marriage annulment. An annulment can apply even if a marriage ceremony has taken place.
Grounds for divorce
Australia upholds a no-fault divorce system. This means that the Family Court doesn’t consider the reason for the divorce. The only requirement is that the marriage has broken down beyond any chance for reconciliation.
Grounds for an annulment
The Court can declare an annulment on the following grounds:
One or both parties were already married to a third party at the time.
At least one of the parties was underage and didn’t have the necessary permissions.
One or both parties were forced to enter into the marriage under duress.
There are other legal grounds that the Court won’t grant an annulment for:
The marriage was never consummated.
The couple never lived together.
Family violence.
Other incompatibility issues.
Applying for divorce
You can apply for a divorce by yourself or jointly with your partner. The application can be completed entirely online through the Commonwealth Courts Portal. Sole applicants must serve the application on their former partner. They can do this through personal service, through the post or by serving their lawyer.
All divorces get a court date once the applicant files their form. Parties typically don’t need to attend the hearing unless you’re making a sole application and there are children in the relationship.
Applying for an annulment
You must complete two documents to receive an annulment. The first document is the initiating application (family law) form. This application cannot be filed through the Commonwealth Courts Portal. The application can be sent to the closest court location.
The second document is the supporting Affidavit – Family Law and Child Support. This affidavit details why the marriage should be considered invalid and how the marriage ceremony was performed.
The annulment documents must be served on the respondent through special service. The parties will need to attend a court hearing. The Court sets the hearing date after receiving the application. The respondent must be made aware of the court date.
Conclusion
Divorce and annulment both dissolve a marriage. However, there is one primary difference. Divorces end a legal marriage, and an annulment resolves a marriage that’s found to be invalid. Different processes are involved in each, which are important to understand.
If you need advice on a divorce or an annulment, contact our office today.
