What is the difference between a decree of Nullity and a Divorce?
A decree of Nullity is an order made by the Family Court of Australia, which in effect states that even though a marriage ceremony has taken place, it was not a valid marriage and therefore has no legal effect. A Divorce however ends a legally valid marriage.
What grounds constitute a decree of Nullity?
- A party is lawfully married to another person;
- The parties are within a prohibited relationship (e.g. first cousins, siblings);
- Consent to the marriage was obtained through fraud, duress or mistake;
- One party did not have the mental capacity to understand the effect of the marriage ceremony;
- One or both parties were not old enough to discharge their obligations to marry; and
- The parties did not comply with the formal requirements for a valid marriage in Australia.
It is important to note that the Court will not declare a marriage invalid based solely on the following reasons:
- Non-consummation of the marriage;
- Never having lived together;
- Family violence; or
- Other situations where the parties feel they are incompatible.
Where an application for a decree of Nullity and an application for a Divorce are both before the Court, the Court is prohibited from making a Divorce Order unless it has dismissed the application for a decree of Nullity first.
If your situation does not satisfy one of the grounds mentioned herein then you will need to obtain a standard Divorce to end your marriage.
What are the grounds for filing for a Divorce?
The sole ground for filing for a Divorce is “irretrievable breakdown” of a marriage. This is proved by the husband and wife having been separated for a twelve (12) month period with no likelihood of getting back together.
If you would like advice in relation to making an application for a decree of Nullity or a Divorce, please contact Best Wilson Buckley Family Law Toowoomba (07) 4639 0000 or Brisbane (07) 3210 0281