can a marriage be annulled

Difference between annulment and divorce

Some of my clients who have separated a very short time after their wedding,  ask about getting an annulment instead of divorce.  It’s not as easy as some think.

Difference between annulment and divorce

A “decree of dissolution of marriage” is what is commonly known as divorce.

A “decree of nullity” however is made if the marriage is void, e.g. when one party was already married, or the parties were within a prohibited relationship, or where there was mistake, duress or fraud, or where a party was not old enough to marry, or some other reason to void the marriage as if it never occurred.

When can a marriage be annulled

The Family Law Courts may declare a marriage void and invalid on the following grounds:

  • At the time the parties were married, one of them was married to someone else.
  • The parties are in a prohibited relationship e.g: underage or a direct blood family member.
  • The parties did not comply with the laws in relation to the marriage in the place they were married.
  • Either of the parties did not give their real consent to the marriage because (a) consent was obtained by duress or fraud or (b) one party was mistaken as to the identity of who they were marrying or the nature of the ceremony or (c) one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

The Court will NOT declare a marriage invalid on the following grounds:

  • Non-consummation of the marriage
  • Never having lived together
  • Family violence or
  • Other incompatibility situations.

What if I was deceived to marry someone who just wanted to get into the country?

This is a common question asked.  It depends on the circumstances at the time of the wedding/marriage ceremony.  Generally, if there was no deception of the identity of the person and the marriage was carried out legally in accordance with procedures and you were in sound mind on that day, then you cannot seek an annulment just because you find out later on that your husband or wife had a hidden agenda to marry you.  It’s same as marrying for money instead of love or failing to notify the spouse earlier about the 5 kids to another ex-spouse and loads of child support to pay.  Unfortunate but you cannot apply for an annulity just on those grounds; the criteria for a divorce instead should be looked at and separation for 12 months would be required.  However, you may be assisted if you seek legal advice about your spouse’s visa status.

Consequences of Nullity Decrees

A decree of nullity is an order from the court stating that there is no legal marriage between the parties, even though a marriage ceremony may have taken place.

An annulment granted by a church is not the same as a court-issued annulment and does not demonstrate that a person is legally free to marry.

 

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