What Is The Difference Between An Annulment And A Divorce?
When it comes to ending a marriage, individuals have two primary legal options: annulment and divorce.
While both processes achieve the same goal of terminating a marriage, they differ significantly in their nature, grounds, and legal implications.
Divorce vs Annulment Explained
The key differences between annulment and divorce lie in the existence and legal status of the marriage.
Divorce ends a legally recognized marriage, whereas annulment declares that the marriage was never valid.
Divorce is based on the irretrievable breakdown of the marriage after a separation of twelve months, while annulment is based on specific legal grounds that invalidate the marriage.
Both processes involve the court and have different legal and procedural requirements, and both require separate proceedings for property and custody matters.
While you can initiate a divorce or annulment process yourself, it’s advisable to hire an experienced family lawyer to help you understand the requirements, process and potential pitfalls of each form of marriage dissolution.
How Divorce Works
Divorce is the legal termination of a valid marriage, acknowledging that the marriage existed but has irretrievably broken down.
In Australia, the only grounds for divorce is the irretrievable breakdown of the marriage, which must be demonstrated by a separation period of at least twelve months. There is no need to prove fault or wrongdoing by either party.
If you’ve been married for less than two years, you will be required to attend a separation counselling session to see if reconciliation is possible. If, after counselling, you still wish to divorce, you can (on the basis of the cousnellor’s certification of completion of that counselling) start divorce proceedings.
The process begins with one or both spouses filing an application for divorce in the Federal Circuit and Family Court. Following this, the application must be served to the other spouse unless it is a joint application.
If the couple has children under eighteen, a court hearing may be required to finalise the divorce.
Once the court is satisfied that the marriage has broken down irretrievably, it grants a decree nisi, which becomes absolute after one month, officially ending the marriage.
However, it is important to note that a divorce does not address issues of property settlement, child custody, or spousal maintenance, which must be dealt with separately.
How Annulment Works
In contrast, an annulment, also known as a decree of nullity, is a legal declaration that a marriage is null and void, essentially stating that the marriage never legally existed.
Grounds for annulment are specific and include situations such as bigamy, where one spouse was already married to someone else at the time of the marriage, or prohibited relationships, where the spouses are closely related.
Other grounds include lack of consent due to duress, fraud, mental incapacity, or being under the influence of substances, non-compliance with legal requirements for a valid marriage, or physical inability to consummate the marriage.
A marriage cannot be declared a nullity (annulled) on the following grounds:
- non-consummation of the marriage
- never having lived together
- family violence
- other incompatibility situations
The annulment process involves filing an application in the Federal Circuit and Family Court, where the applicant must prove the grounds for nullity. A court hearing is held to determine if the marriage is void, and if the court is satisfied, it grants a decree of nullity, stating the marriage is void.
An annulled marriage is considered never to have legally existed, although issues of property settlement and child custody still need to be addressed, often in a less complicated manner than in a divorce.
How long can you be married and still get an annulment?
There are no time limits on applying for a declaration to invalidate a marriage.
Consult a Qualified Family Law Professional
Understanding these subtle differences is kel for individuals considering their options when ending a marriage.
Whether opting for divorce or annulment, it is advisable to seek legal counsel to help you fully understand and safely navigate the complexities of family law, ensuring that all aspects of the process are handled appropriately.
Seek legal advice from a local family law practitioner.
