Under Australian law, there are two ways to dissolve a marriage: annulment and divorce. While both formally end the relationship, there are key differences to note when comparing an annulment vs divorce.
An annulment involves the court declaring that the marriage was never legally valid in the first place. A divorce, in contrast, recognises that the marriage was valid but brings it to a legal end.
At BDN Lawyers, we’ve been helping clients part ways as smoothly as possible for over 160 years. Here, our experienced family solicitors explain the difference between divorce and annulment in Australia.
Keep reading to discover the definitions of each, their core distinctions and which course of action may be most suitable for your circumstances.
What is a marriage annulment?
An annulment, formally known as a decree of nullity in Australia, is a court order that deems a marriage void. If an annulment is granted, the law treats the marriage as though it were legally invalid and therefore never happened, even if a wedding ceremony took place.
In Australia, annulments are rare and only apply in limited situations. The Federal Circuit and Family Court of Australia is authorised to grant annulments under section 51 of the Family Law Act 1975 (Cth).
Common grounds for getting a marriage annulled include if one party was already married at the time of the ceremony, if the parties are in a prohibited family relationship, or if there was no proper consent to the marriage.
If none of the legal grounds for nullity applies, the appropriate way to end a marriage in Australia is usually through divorce.
What is a divorce?
Divorce is a legal process that ends a valid marriage. Unlike an annulment, it recognises that a marital relationship once legally existed but has now come to an end.
Divorce applications are handled by the Federal Circuit and Family Court of Australia under the Family Law Act 1975.
Note that while the divorce process legally ends the marriage and allows both parties to remarry, it does not automatically resolve related issues such as property division, financial settlements, or parenting arrangements. These legal matters are usually dealt with through separate Family Law processes.
Learn more about divorce.
Annulment vs divorce under Australian Family Law: 6 key differences
Here, we detail the primary differences between annulment and divorce under Family Law in Australia.
Legal status
The main distinction between an annulment vs divorce is the legal marriage status. An annulment is a legal declaration that the marriage was never legally valid, and is considered null and void. On the other hand, a divorce acknowledges that a legally valid marriage occurred but has now been dissolved.
Legal grounds to apply
Before an annulment or divorce can be granted, one or both parties must provide a valid reason that meets the legal criteria. The court will evaluate these grounds to determine if the annulment or divorce should be approved.
In Australia, divorce operates under a no-fault system. For a no-fault divorce, the sole requirement is to demonstrate that the legal marriage has irretrievably broken down, shown by the parties being separated for at least 12 months with no reasonable likelihood of reconciliation.
The court does not consider reasons for the legal dissolution, such as personality differences, religious beliefs, or financial disputes.
Unlike divorce, a legal annulment is only granted under specific circumstances. The specific legal grounds for an annulment include:
- One or both parties were married to another person at the time of the marriage.
- One or both parties were not of marriageable age.
- Either party was misled about the identity of their spouse or the nature of the marriage ceremony (e.g., they were unaware they were marrying).
- The marriage did not comply with the Marriage Act 1961.
- Either party was forced into the marriage under duress.
- The marriage was between people in a prohibited relationship (e.g., close relatives, including adopted relatives).
To establish these grounds, the court will thoroughly review the evidence, a process that can be both time-consuming and costly. This evidentiary burden is typically greater for annulments than for divorces.
It’s important to note that the court will not grant an annulment for reasons such as incompatibility, regret, family violence, non-consummation, or lack of cohabitation. These issues do not affect the legal validity of a marriage and, therefore, are not grounds for annulment in Australia.
If the evidence does not satisfy the legal criteria for an annulment, the parties will need to pursue a divorce application to formally dissolve the marriage.
Time limits
Mandated waiting periods are a key consideration when it comes to annulment vs divorce. Annulments can be sought as soon as desired after a marriage takes place. In contrast, a couple must have been separated for a minimum of twelve months before applying for a divorce.
Evidence required
Another difference between annulment and divorce? Obtaining a marriage annulment typically demands more substantial evidence compared to filing for divorce.
After all, the Court requires sufficient proof to determine whether an annulment is appropriate under the circumstances. This includes demonstrating that your case meets one of the legally accepted grounds for annulment.
To apply for annulment proceedings, you must submit an Initiating Application along with a copy of your marriage certificate and an Affidavit.
The affidavit should clearly outline the grounds for your annulment, including the specific facts you are relying on and details of the marriage ceremony.
If the other party contests the application, they can file a Response to Initiating Application form, supported by their own affidavit explaining why the annulment should not be granted.
Provided the respondent is in Australia, a court hearing will be scheduled 42 days after they are served with the application. For respondents located overseas, the court hearing will be set 56 days later.
Time to take effect
When the Family Court issues a decree of nullity, it takes effect immediately. Meanwhile, a Divorce Order only becomes final one month and one day after it is granted.
Rarity
In 2024, 47,216 divorces were granted in Australia. Not nearly as many people get marriage annulments, as it is generally far more difficult to end a marriage through this process. The Family Court typically only grants a decree of nullity in limited circumstances.
Should I get a divorce or an annulment?
Whether you pursue a divorce or an annulment depends on whether your marriage was ever legally valid.
As the grounds for annulment are particularly strict, divorce proceedings are the only option for most couples who wish to formally end their marriage.
It’s important to note that neither an annulment nor a divorce will:
- Resolve child custody arrangements and other parenting matters;
- Address division of property and other financial issues;
- Automatically update or cancel Wills or Powers of Attorney; or
- Adjust or override existing insurance policies.
To protect your rights and ensure your legal obligations are met, we strongly recommend seeking professional advice from an experienced family lawyer.
Get personalised legal support with your annulment or divorce
If you are planning to end your marriage, understanding the difference between an annulment vs divorce is vital. An annulment declares a marriage was never legally valid, while a divorce ends a recognised union that has broken down.
Ready to apply for an annulment or file for divorce?
It’s important to seek legal advice as soon as possible. At BDN Lawyer, our trusted family lawyers in Canberra and Queanbeyan can help you close this chapter with compassionate and professional legal advice. We can assess the likelihood of success in obtaining either order and explain its implications clearly.
Our family lawyers are also able to assist you in drafting the application and addressing related matters such as parenting arrangements, property settlements, and, in the case of divorce, spousal support.
Book a consultation to discuss your personal circumstances and explore the best way forward today.
