Your marriage is over and now you find yourself wondering “How on earth do I get myself out of this?”
You’ve heard the terms “Divorce” and “Annulment” thrown around like confetti at a wedding but have no idea what the difference is, and wasn’t there a religious aspect to consider? Well, the answer is slightly more complicated than choosing your preferred brand of fly-spray at the supermarket as both options are very different in a legal sense.
The defining difference is that a Divorce Order will recognise that a legal marriage existed and will act to dissolve that marriage.
An Annulment, also known as a decree of nullity, acts retrospectively by declaring that the marriage is void and never legally existed. This is not to be confused with a religious annulment that a Church might bestowed on its members, as these annulments do not have legal standing in Australia.
You might be wondering what difference it makes whether your marriage legally existed or not. A Court will only issue a decree of nullity (annulment) in limited circumstances, and they are not always available to those who may wish them. To help understand why a Court would make an Order that a marriage never existed let us explore some circumstances in which a marriage could be found to be void:
- If your spouse used a false or mistake identity when entering into the marriage;
- If you were deceived as to the nature of the ceremony that resulted in your legal marriage;
- If one party to the marriage did not have the mental capacity to understand the nature and effect of the marriage ceremony;
- If one party (or both) was already legally married to someone else;
- If either, or both, of the parties were below the legal age to marry;
- Consent was obtained through fraud or duress;
- Prohibited relationships (eg. Immediate family members); or
- The parties didn’t abide by the marriage laws in the jurisdiction that they were married.
Alas, irreconcilable differences, non-consummation of marriage, never having resided together, regret, and even the experience of Family Violence will not merit the Court issuing a decree of nullity and you will need to opt for a Divorce Order instead. Keep in mind however that in Australia we have a ‘no fault’ jurisdiction and that the only requirement you will need to satisfy in order to apply for a divorce, so long as you have been married for over two years, is that you and your spouse have been separated for twelve months. But rest assured that couples who ‘separate under the same roof’ are not precluded from making a Divorce Application.
The Federal Circuit and Family Court of Australia website provide ‘Divorce Kits’ which assist prospective applicants by clearly setting out the requirements and processes for getting your Divorce show on the road. If this all seems just too overwhelming and you feel like putting the whole business into the “too-hard basket” reach out and speak to a friendly family lawyer who can help you navigate your way smoothly through to Single-dom.