Nullity of a Marriage

Nullity of a Marriage

In some circumstances, it may be necessary to ‘terminate’ a marriage by way of a Nullity of the Marriage rather than an Application for Divorce. In essence, a Decree of Nullity of a Marriage is a declaration to the world that the marriage is question was void from the beginning.

Section 51 of the Family Law Act 1975 (Cth) makes provision for a Nullity to be granted in circumstances where:

1.    At the time of the marriage, either one of the parties is legally married to someone else;

2.    Either of the parties are not of marriageable age;

3.    Consent to the marriage of either of the parties is not real consent, due to:

a.    It was obtained under duress or fraud;

b.    That party lacks mental capacity to understand the nature and effect of the marriage ceremony; or

c.    That party was mistaken or misinformed about the nature of the marriage ceremony;

4.    The marriage is not valid under the law of the place in which the marriage took place.

The Family Court has held that “…the grant of a decree is not discretionary. If the facts establish that the marriage is invalid, relief must issue[1].” Accordingly, upon the Court finding the facts undoubtedly show that the marriage is invalid, a Decree of Absolute is made in the first instance annulling the marriage.
[1] In the Marriage of Teves III and Campomayor (1994) 18 Fam LR 844 at 857.