Divorce vs Annulment: Differences and What Applies To You

Separating partners discuss divorce terms

In the Australian community, there are many misconceptions surrounding  divorce and annulment. These two legal processes can be difficult to understand, and knowing which one is appropriate can further confuse individuals.

To understand the difference between divorce and annulment, each of these legal concepts must be examined with respect to the applicable laws.

What is a divorce?

In Australia, a divorce is the formal termination of a marriage. Since the introduction of the Family Law Act 1975 (Cth), Australians have been able to apply for divorce without providing proof of fault or reason. This means that you do not need to provide the Court with grounds for your divorce other than the fact that your marriage has “broken down irretrievably” (section 48(1)).

What is an annulment?

The process of annulment is a legal declaration that there was never a valid legal marriage. This is referred to as a “decree of nullity.” A decree of nullity differs from a divorce in that it declares that the marriage was never lawful in the first place, while a divorce deals with the dissolution of a legally recognised marriage.

Legal differences: Divorce vs annulment

A divorce terminates a legally legitimate marriage, but an annulment treats a marriage as if it never happened at all. This may have consequences for other rights concerning property settlements and other such matters.

Both a divorce and an annulment involve filing an application with the Federal Circuit and Family Court of Australia.

When annulment is appropriate

For a marriage to be recognised under Australian law, the parties must satisfy certain requirements set down in the Marriage Act 1961 (Cth). When you seek an annulment, you are stating that your marriage did not meet these criteria.

To obtain a decree of nullity, you must be able to demonstrate any of the following: 

  • During the time of the marriage, one or both of the parties were already married to someone else
  • The parties to the marriage are involved in an unlawful connection (eg they are family members)
  • Neither of the parties was of legal marriageable age
  • Because of fraud or duress, neither party provided genuine consent
  • Either of the parties mistakenly believed they were marrying someone else
  • Either of the parties were unable to comprehend the significance of the event due to a mental disability

In certain instances, determining whether a marriage was legitimate might be challenging. For instance, if one party believes the ceremony they attended was not a genuine marriage but rather a simple commitment ceremony, they may be surprised to learn they are legally married and may be required to instead file for divorce.

When divorce is required

According to the Family Law Act 1975 (Cth), the only legal ground or justification required for your divorce application is that the marriage has irretrievably broken down. In order to provide proof of this breakdown, you must be legally separated from your spouse for at least 12 months – which can include being separated under one roof – and have no reasonable prospects of getting back together. The court will then agree that you’ve met the threshold of irretrievable breakdown.

Common misconceptions around annulment

Annulments are an easier way out of marriage

Many people believe annulment is a less painful option than divorce when dealing with an unhappy marriage. However, as discussed above, if you cannot prove that the marriage does not meet the required criteria, it is impossible for your marriage to be annulled and your application will be dismissed.

Annulments involve less legal work and cost

Whilst divorces can involve significant costs, an annulment is not without complication. Providing evidence that your marriage was invalid to the required standard can be challenging to begin with and, if disputed by your spouse, can result in lengthy and costly litigation with no certainty of outcome.

Receive advice and help from Accredited Family Law Specialist

If you’re unsure whether you’re eligible to make an annulment application, our experienced family law solicitors at Ryan & Seton can help you determine which course of action is appropriate. Contact us today to arrange an appointment.

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