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Last year I wrote about the law surrounding Divorce if a couple has been married for less than two years. What about if a couple marries and then, very soon after, the relationship abruptly ends and they want to annul the marriage? Once again, celebrities have gone down that road. For example, one couple filed for an annulment in California, after four months’, claiming a ‘miscommunication’ as to the nature or purpose of the marriage. Would they have been successful in Australia? Unlikely.

What does it mean to ‘get an annulment’?

In Australia, the Family Law Act 1975 (Cth) refers to annulment as a ‘decree of nullity’. In effect, an application to the Court under s 51 Family Law Act 1975 (Cth) for a decree of nullity ‘shall be based on the ground that the marriage is void’.

There are several grounds under which a marriage can be considered void, as listed in ss 23(1) and 23B(1) Marriage Act 1961 (Cth) and reproduced here:

  • Either of the parties is, at the time of the marriage, lawfully married to some other person;
  • The parties are within a prohibited relationship (defined in ss23(2) and 23B(2) as being relationships between members of the same family or between half-or full-siblings);
  • By reason of section 48 Marriage Act 1961 (Cth) the marriage is not a valid marriage (i.e. the appropriate documentation prior to and following the marriage was not completed – being a notice of intent to marry and/or being married before an unauthorised celebrant);
  • The consent of either of the parties is not a real consent because:
    • It was obtained by duress or fraud;
    • That party is mistaken as to the identity of the other party as to the nature of the ceremony performed; or
    • That party did not understand the nature and effect of the marriage ceremony; or
  • Either of the parties is not of marriageable age (being 18 years of age).

A marriage will not be declared void by the Court on the basis that, for example, the marriage was never consummated or the married couple never resided together. Family Violence, as traumatic as it is, is also not a grounds for a decree of nullity.

Has anyone ever successfully applied for a decree of nullity?

Yes – but it seems not to have happened for a very long time.

The Court in Campani & Suyapto [2008] FamCA 1121 (16 December 2008) for instance, granted Mr Campani’s application for a decree of nullity where he had married Ms Suyapto in November 2004 and, at that time, was provided with a birth certificate, Medicare Card and health care card, where Ms Suyapto’s name was stated as “KWT”. Ms Suyapto had been living in Thailand. Mr Campani accepted her version of events until approximately seven months’ later, when it became clear that Ms Suyapto was not, in fact, “KWT”, and had adopted a false identity. Subsequently, whilst the application for the decree of nullity was on foot, MS Suyapto was deported from Australia and remained in Thailand at the time of the judge’s decision. The judge found Mr Campani’s consent to the marriage was not real because he was ‘mistaken as to the identity’ of Ms Suyapto at the time of the marriage, the mistake having been perpetrated by Ms Suyapto’s fraudulent behaviour

More recently, applications for a decree of nullity have been based on the fraud ground. However, the Family Court has held time, and time again, that fraud under the Marriage Act 1961 (Cth) only applies if there was fraud as to the nature of the ceremony or the person’s identity, and not the reason for the parties entering into the marriage.

Looking back to 1977, the Court in In the Marriage of Deniz (1977) FLC 90-252, granted an application for a decree of nullity to a woman where the man involved, according to the Court never ‘had the slightest intention of fulfilling in any respect the obligations of marriage’ and had ‘used the unfortunate [woman] as a tool of his own convenience.’ The woman in this case was an Australian citizen from an immigrant family. The man was a foreign national who, at the time of the parties’ marriage, was seeking permanent residency in Australia. Upon learning of the man’s actual intent after their wedding, the woman had nervous breakdown and attempted to end her life as, in her culture, divorce was looked upon with shame. The parties never lived together. Given the fact circumstance, the Court granted the woman’s application.

This case seems to have been an anomaly as its correctness was questioned by the Court subsequently in In the Marriage of Otway (1986) 11 Fam LR 99. The man in that case was an Australian national and the woman was a citizen from a foreign country. They married in September 1985 and cohabited until January 1986, at which time the woman left the matrimonial home and commenced a de facto relationship with another man who she had been seeing for a long time, but who did not wish to marry her. She informed her husband of her intention to live with the other man just four days after their wedding. Though her husband knew of her intention to become an Australian citizen, he did not know of her pre-existing relationship and applied for a decree of nullity. The Court there distinguished the earlier case of Deniz on the basis that the parties in Otway had cohabited for a short period of time. This case seemingly signified the change in the Court’s interpretation of fraud under the Marriage Act 1961 (Cth), as the Court held that ‘fraudulent misrepresentations inducing consent do not constitute fraud’ as defined in the legislation.

It is therefore very difficult to apply for a decree of nullity on any of the grounds, least of which on the basis that, for example, one party’s entire demeanour changed following the marriage ceremony. Whilst that is undoubtedly frustrating, it reinforces the importance of ensuring you truly know your partner before taking such a big step.

If you require advice on whether you have grounds to proceed with a decree of nullity, or whether you should wait out the separation period and file for divorce, please contact Kristen Mitchell-Scott of Mitchells Solicitors on (07) 3373 3633 or via email at kmitchellscott@mitchellsol.com.au.

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