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?

  1. A party is lawfully married to another person;
  2. The parties are within a prohibited relationship (e.g. first cousins, siblings);
  3. Consent to the marriage was obtained through fraud, duress or mistake;
  4. One party did not have the mental capacity to understand the effect of the marriage ceremony;
  5. One or both parties were not old enough to discharge their obligations to marry; and
  6. 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:

  1. Non-consummation of the marriage;
  2. Never having lived together;
  3. Family violence; or
  4. 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