When can a marriage be nullified?

Date: Feb 27, 2015

Marriages will occasionally end as the result of divorce - however, in some cases, it is also possible for them to be nullified if the legal conditions that accompany a marriage are not met.

For individuals who are getting married, it will be important to understand the legal obligations that come with this commitment, as the wrong move may lead to the marriage being rendered invalid. If individuals want to have their legal union nullified, they will also need to prove that these conditions have not been met.

There are five grounds on which a marriage can be nullified in NSW. These are:

  • If one of the parties is under the age of consent at the time the marriage began;
  • If either of the parties were already married to another person;
  • If either party's consent to marry was obtained by duress, accident or fraud;
  • If certain conditions that are supposed to accompany a marriage, as laid out in the Marriage Act 1961, have not been met;
  • If the two parties are legally prohibited from marrying - because they are closely related for example.

These are the core grounds that can be used to have a marriage nullified. Other issues, such as family violence or a couple never having lived together, are not grounds to have a marriage rendered void and individuals in this position will instead have to begin divorce proceedings.

The Family Court of Australia has the power to declare a marriage invalid, and therefore nullify it. Individuals who want to have their marriage nullified can lodge an Initiating Application to the Family Court, together with a supporting affidavit outlining the facts relied upon as to why the marriage should be anulled. 

Unlike a divorce, applicants will not have to wait 12 months before they can begin divorce proceedings. Instead, they will be able to apply at any point once the marriage has begun. If a decree of nullity is awarded by the Supreme Court, it will come into effect instantly.

Given how stringent the conditions are for individuals to pursue a decree of nullity for their marriage, people considering this as an option to end their marriage will often  seek the advice of a family lawyer