Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
I have written in this column previously about the process for obtaining a divorce. Basically, as long as you can establish that the marriage has broken down irretrievably, and the parties have lived separately and apart for 12 months, a divorce will be granted.
Today I want to talk about a marriage being legally annulled.
Most people associate the term annulment with couples wanting a marriage to be declared null and void as far as a particular church or religion is concerned. That is a separate matter entirely and is largely based on religious issues.
What we are talking about today with annulment, is an order of the Court that states no legal marriage is in existence, or in fact ever was, even though a marriage ceremony may have taken place.
The Family Law Act sets out a number of grounds that can result in a marriage being declared invalid and illegal.
The first is where either party was already married to someone else, at the time of the marriage.
If the fact becomes known at some stage after the ceremony, either party can apply for an order that no legal marriage exists between them.
The fact that the parties are in a prohibited relationship is another ground for an annulment.
Marriage may not take place between direct descendants such as siblings or parent and child. The reference to siblings includes half siblings and those legally adopted.
At a different level, the illegality of a marriage may arise because the actual ceremony was invalid. It may be that the parties did not comply with the relevant laws pertaining to the ceremony, such as, using an unqualified celebrant or incorrect paperwork.
The marriage act provides for specific procedures that must be adhered to. If they are not, there is a chance that the marriage is not really a marriage at all.
The fact the one or both of the parties were not old enough to marry is also a ground. You need to be 18 years of age unless you have a court order to the contrary.
The final ground is where either party did not give their real consent. This failure to give genuine consent can occur in a number of different ways.
The first instance is where one party was mentally incapable of giving their real consent. Secondly, it may have been that the party’s consent was obtained by duress or fraud.
This could happen where one person uses force or threats to compel the other to agree to the marriage against their will. Fraud can occur where one party actually misrepresents who they are and pretends to be someone else.
An application can be made by either party for an order of annulment. Unlike a divorce, there is no requirement that the parties be separated for any length of time. Once they become aware of any of the grounds discussed, an application may be made. Once granted by the court, the decree of nullity is effective immediately.
The fact that the marriage has been annulled does not mean that the parties do not have rights in relation to the division of property. An application for a property settlement must be brought within 12 months of the decree.