A nullity of a marriage essentially means that the marriage is declared or found to be invalid and therefore at law, the two parties are treated as though, for all intensive purposes, they were never married. In basic terms, another way to describe a nullity of marriage is by use of the simple concept that the marriage is effectively void. Sometimes, couples want to apply for a nullity of marriage, as opposed to a divorce. Generally, applications for nullity of marriage are often fuelled or driven by religious reasons. Unfortunately, the civil law in Australia limits the situations in which a marriage may be considered a nullity and accordingly, applications for a nullity of marriage, at law, are scarce. However, this does not mean that they are never granted. The Marriage Lawyers and Family Lawyers at Navado Lawyers & Solicitors are well versed in this area of the law and have previously advised clients with respect to claims for nullity of marriage and can assist clients in Court proceedings for nullity of marriage.
Section 23B(1) of the Marriage Act 1961 (Cth) (the Act) provides for the situations in which a marriage may be void. As same sex marriages are not considered valid in Australia, this also means that a same sex marriage cannot be nullified.
A marriage will be considered to be void where one of the following situations exists:
- One or both of the parties was at the time of the marriage, lawfully married to another person;
- The parties are in a prohibited relationship;
- The marriage is not a valid marriage due to section 48 of the Act;
- Consent was not voluntarily given by one or both of the parties; or
- One of both of the parties is not of marriageable age and consent was not obtained from the court.
A prohibited relationship is one where the parties of the marriage are, for example, brother and a sister will be considered void. A marriage between an adopted child and its adoptive father or mother will also be void. This is because under the Act, the relationship between an adopted child and its adoptive parents is considered to form a natural (or blood) relationship. This will therefore mean that if the adopted child has a daughter and the adopted child’s adoptive sibling has a son, a marriage between the two offspring will also be considered void.
Where consent is an issue, the marriage may also be void. For example, where consent of a party to the marriage was obtained under duress or the party lacked the mental capacity to understand the nature and effect of the marriage ceremony, the marriage may be considered void.
If you are considering arguing duress on the question of consent, there are certain elements that need to be proved. For instance, the applicant must show that the applicant’s fear was reasonably based. This fear does not however have to be based on a threat of violence. In the case of Marriage of S  5 Fam LR 831, the parents arranged a marriage for their daughter. The daughter did not want to get married, however, she was a dutiful daughter and went through with the marriage. The marriage was a disaster and her parents joined in an application for a nullity as divorce was unacceptable in their culture. The judge considered that although there was no physical pressure, the daughter was in a psychological prison and was fearful of the consequences if she went against her parents. The court ordered that the marriage was void due to duress and there was no real consent.
If you wish to obtain legal advice regarding a potential claim in nullity of marriage, then you should speak to one of our Family Lawyers today and assess whether a nullity of marriage may be available to you.
If you wish to make an appointment to see us at our head office in Syndey CBD, contact us by telephone on (02) 9233 4048 or send an email to firstname.lastname@example.org. Alternativley, we may see you in one of our branch offices located in the Sydney metropolitan area. For a complete list of our branch offices, please peruse our "Locations" tab.
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