People sometimes use the words ‘divorce’ and ‘annulment’ interchangeably, but they are separate processes with different requirements. Regretting a decision to marry, not consummating the marriage, or realising that one of you is actually in a different financial situation to what you thought may all be good reasons to seek a divorce, but they do not qualify as reasons to seek an annulment.
To obtain a divorce your must first demonstrate that you have entered into a valid marriage that you now wish to end. In contrast, to obtain an annulment you must demonstrate that the marriage you have entered into was never valid at all.
The requirements for a valid marriage are as follows:
- Neither party can be married to another person;
- Both parties have to be over 18, although they can be given leave by the Court to marry at age 16 in certain circumstances;
- It cannot be a prohibited relationship, like brother and sister;
- There must have been real consent to the marriage that took place in a real ceremony, and that consent must not obtained by duress, fraud, or mistaken identity, or take place when a person was incapable of understanding what they were entering into.
The case of Nagri & Chapal [2012] FamCA 464 is a good example of where the Court granted an annulment due to duress. In that case, the parties entered into an arranged marriage that was set up by the applicant’s uncle. The applicant did not want to marry the respondent, but the uncle put the applicant under immense pressure to comply with his ‘family duties’, ignoring the applicant’s objections. The applicant went along with the civil ceremony, but ultimately refused to go through the religious marriage ceremony and applied for an annulment.
The Court found that the applicant was subjected to such “strong feelings of family loyalty” and “religious and cultural beliefs” that he “believed his uncle was entitled to demand his obedience”. He was economically dependent on his uncle and felt that he owed his uncle a debt because of the support his uncle previously provided. The Court ultimately found that these factors taken together meant that the applicant was under duress because his will was “overborne to the extent he was not acting of his own free will”, and granted him the annulment.
Annulments can be a tricky business and applying for one is a much more difficult process than obtaining a divorce. If you are considering seeking an annulment, you should obtain specialist family law advice.
If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.