When a marriage breaks down, most people think of divorce as the obvious next step. However, in some cases, a legal annulment might be a more appropriate option — depending on the specific circumstances of the marriage. While both annulment and divorce result in the end of a marriage, the legal foundations and outcomes are quite different.
Understanding the distinction between the two is essential if you’re considering separation or challenging the validity of a marriage. Each pathway has its own legal requirements, processes, and implications — particularly when it comes to property, children, and financial settlements.
At Hickman Family Lawyers, we often receive questions about whether annulment is a viable alternative to divorce. While it’s not suitable in most cases, it may be the right option under particular legal conditions.
Our family lawyers in Perth explain what annulment involves, how it differs from divorce, and when it might be relevant under Australian family law.
Annulment vs Divorce: What You Need to Know
Both annulment and divorce are legal mechanisms for ending a marriage in Australia, but they operate on fundamentally different legal principles.
Divorce acknowledges that a valid marriage existed but has now broken down irretrievably.
Annulment, on the other hand, is a legal declaration that the marriage was never valid in the first place. This means that, in the eyes of the law, the marriage never legally existed.
This distinction is important not only for legal and financial reasons, but also for personal, cultural, or religious beliefs.
In Australia, annulment is referred to as a declaration of nullity, and it is only granted in limited and specific circumstances.
Let’s explore the topic of annulment vs divorce: what annulment actually means and how it compares to divorce under Australian law.
What is Annulment?
An annulment, legally known as a decree of nullity, is a declaration by the Family Court that a marriage is void. In essence, it means that the marriage was never legally valid, and therefore, there is no need to dissolve it through divorce proceedings.
This can occur for a range of reasons, including situations where one or both parties were not legally allowed to marry — such as being already married to someone else, underage without proper consent, or closely related. It can also be granted if the formalities of marriage were not properly followed, such as not having a valid celebrant or legal ceremony.
Unlike divorce, which can be granted solely on the basis that the marriage has broken down irretrievably, annulment requires proof that the marriage should never have been valid under law in the first place.
It’s important to note that simply regretting a marriage, or discovering incompatibility shortly after the wedding, does not qualify as grounds for annulment. The Court will need legal justification to declare the marriage void.
How is Annulment Different from Divorce?
When it comes to annulment vs divorce, the main difference between annulment and divorce lies in the legal status of the marriage.
A divorce ends a valid marriage. It’s a formal recognition that a relationship has broken down beyond repair, and it typically follows a 12-month separation period. Once granted, divorce does not question the legality of the original marriage — it simply ends it.
An annulment, by contrast, declares that the marriage was never legally valid to begin with. It does not require a period of separation, nor does it focus on the quality or breakdown of the relationship. The focus is entirely on the circumstances under which the marriage occurred.
Some key differences include:
- Timing: Divorce requires at least 12 months of separation, whereas annulment can be sought at any time.
- Grounds: Divorce only needs proof of separation; annulment requires proof of invalidity.
- Legal Outcome: Divorce ends a marriage; annulment voids it as if it never legally took place.
Understanding these differences is crucial when deciding which legal avenue is most appropriate for your circumstances. A family lawyer can help you assess your eligibility for annulment and explain the legal consequences of each option.
When Would You Get an Annulment?
Annulment is appropriate only in rare and specific circumstances. The Family Court may grant a decree of nullity if one or more of the following conditions apply:
- Bigamy – One party was already legally married to someone else at the time of the marriage.
- Prohibited Relationships – The parties are closely related by blood (e.g. siblings or parent/child).
- Lack of Consent – One party did not properly consent due to duress, fraud, mistaken identity, mental incapacity, or being under the influence of drugs or alcohol.
- Invalid Marriage Ceremony – The ceremony did not comply with the legal formalities required under the Marriage Act 1961 (e.g. conducted by someone not authorised to perform marriages).
- Underage Marriage Without Consent – One party was under 18 years of age and did not have proper court or parental consent.
It’s worth noting that the following are not grounds for annulment:
- The marriage was short-lived.
- The parties never lived together.
- One party was unfaithful.
- One party changed their mind.
Annulments are relatively rare in Australia, but they do serve a vital legal function in addressing marriages that were never valid under the law.
How Does Annulment Work in Australia?
To apply for an annulment in Australia, you must file an application for a decree of nullity in the Family Court of Western Australia (if you are located in WA) or the Federal Circuit and Family Court of Australia (in other states and territories).
The process typically involves:
- Preparing and lodging an application, accompanied by a sworn affidavit outlining the grounds for the annulment.
- Serving the application on the other party (the respondent), who has the right to respond.
- Attending a court hearing, where the judge will consider the evidence and decide whether the marriage should be declared null and void.
If the Court is satisfied that the legal criteria are met, it will issue a decree of nullity, meaning the marriage is treated as if it never legally occurred.
While the marriage itself may be void, the Court may still make decisions relating to property division and parenting arrangements, similar to a divorce. These issues are handled under the same family law principles used in divorce proceedings, so it’s still vital to seek legal advice.
Does Annulment Affect Property or Children’s Matters?
Even if a marriage is declared null, the rights and responsibilities arising from that relationship don’t simply disappear. The Family Law Act allows the Court to make orders about property settlement, spousal maintenance, and parenting arrangements, even where the marriage is void.
This ensures that parties aren’t left disadvantaged — particularly if they’ve shared assets, raised children, or contributed financially during the relationship.
For this reason, many of the same considerations involved in a divorce still apply. The Court will assess:
- Financial and non-financial contributions.
- Future needs of both parties.
- Best interests of the children (if any).
At Hickman Family Lawyers, we help clients navigate the complexities of annulments, including all associated financial and parenting matters. Just because a marriage is legally void doesn’t mean your rights and obligations vanish — and it’s crucial to protect your interests.
Annulment and divorce may both bring a marriage to an end, but they are very different legal processes with different outcomes. An annulment effectively erases a marriage from a legal perspective, while divorce acknowledges a marriage that has ended. If you believe your marriage may have been invalid, or you’re considering separation, it’s essential to understand which path is appropriate for your situation.
At Hickman Family Lawyers, our experienced team of family lawyers and annulment lawyers can guide you through the legal requirements and implications of both divorce and annulment. Whether you’re seeking clarity on your rights or ready to take the next legal step, we’re here to help you make informed decisions and move forward with confidence.
Get in touch today for your free no-obligation, 15-minute information call.
