19 Jul Marriage regret: Nullity vs Divorce
Separation can leave parties wishing they never got married in the first place. Whilst a marriage cannot simply be undone, there are Court pathways to dissolve, or in slim circumstances void, the marriage.
In Australia, the single ground for dissolution of a marriage is that the said marriage has broken down irretrievably. That irretrievable breakdown is evidenced by the parties to the marriage having separated and thereafter lived separately and apart for a period of 12 months. A marriage of less than 2 years’ duration will give rise to additional requirements, but generally speaking parties can simply wait 12 months from the date of their separation and then make an Application for Divorce, jointly or solely.
An Application for Divorce does not challenge the validity of the marriage, but seeks to terminate same by way of Order of the Court.
Occasionally, a party to a marriage will seek to annul the marriage on the grounds that they were misled or mistaken with respect to the person they were marrying or the future that was portrayed to them. This most commonly arises in circumstances of arranged marriages, marriages with overseas persons and relationships commenced via the internet.
An Application for a decree of nullity challenges the validity of the marriage, seeking that same be declared void and as if it never happened.
The grounds for a successful decree of nullity can be difficult to make out, and are summarised as:
- One party being lawfully married to another party at the time of the relevant marriage (i.e. bigamy);
- The relationship between the parties being prohibited (i.e. close relatives);
- Procedural requirements not being met;
- Lack of consent due to duress, fraud, mistaken identity or mental incapacitation;
- One party being below the marriageable age.
Related Tag: Divorce Lawyers Gold Coast