What if you change your
mind? Annulment or Divorce in Australia
Cram - Brisbane Marriage Celebrant
| Wedding Legals |
I love marrying loved-up couples and
seeing the love and commitment on their faces and
hearing it in their voices as they speak their vows.
So it might seem a strange thing to write a blog post
about ending a marriage. But, the fact that it
requires a court process to legally end a marriage
validates marriage as a serious legal and emotional
commitment. One that requires effort to be successful,
and effort to end.
But I am also a realist. Not all marriages work out as
the couple hoped or intended. And so I am often asked
questions about divorce and annulment. And when I am
asked to marry a couple where one or both has been
previously married, I have to satisfy myself that they
are free to marry again. Which means I need to see
official paperwork about how that marriage ended.
What if you change your
Having solemnised the marriages of more than 1800
individuals, it stands to reason that I've seen the
occasional case of "buyer's remorse". I've had several
cases where one party has contacted me soon after the
wedding (once, the morning after), to ask me not to
submit the marriage papers for registration of the
marriage. This is something no celebrant can do. We
have a statutory obligation to submit the marriage
papers to Births Deaths and Marriage for the simple
reason that it was the saying of the vows that created
the marriage. The signing of the certificates
documents the marriage. It doesn't create it.
What's the difference
between divorce and annulment?
A divorce decree recognises that a marriage has taken
place but has subsequently broken down and there is no
reasonable likelihood that the couple will get back
together. Even so, there is a "cooling off" period of
one month and one day between the day of the court
hearing and granting of the divorce, and when it
becomes final. During that period neither party is
free to marry again.
A declaration of nullity is a finding that there was
no legal marriage between the parties, even though a
marriage ceremony may have taken place.
Can you have your marriage
annulled in Australia?
In Australia, annulment of a marriage requires a court
process and can take as long, if not longer, than
getting a divorce. Unlike many other countries, there
are very few grounds on which a marriage can be
annulled, and they all come down the fact that the
marriage should not have taken place at all because
there were legal grounds that prohibited it. In other
words, there was no legal marriage between the
parties, even though a marriage ceremony may have
taken place. The Family Court of Australia and the
Family Court of Western Australia may declare a
marriage invalid on the following grounds:
- one or both of you were already married at the
time the marriage ceremony took place
- you are in a prohibited relationship (you are
closely related by blood or adoption)
- one or both of you were not of a legal age to
marry and did not have the necessary approvals (in
Australia one party can be 16 or 17 but the other
must be at least 18, and the under-age person must
have permission to marry from the court)
- you did not comply with the laws in relation to
- one or both of you did not give your real
consent to the marriage because
- your consent to the marriage was obtained by
duress or fraud, which means physically forced,
psychologically coerced, or tricked into the
- you were mistaken as to the identity of who
you were marrying
- you were mistaken as to the nature of the
- one of you was mentally incapable of
understanding the nature and the effect of the
A common misunderstanding is that a marriage can be
annulled where it has not been consummated. In
Australia there is no requirement that a marriage be
consummated, a decision made by very wise
legislators who based that decision on their concern
that there was no way to be sure that any
consummation was consensual.
Is a religious annulment
In a word. No.
Some religions, such as the
Catholic Church, will not allow a divorced person to
remarry while their previous spouse is still alive
unless there is an annulment under Church law. Such
annulments are not recognised by law as a legal
annulment of the marriage so a legal divorce must be
obtained before remarrying.
Getting Married (Bite-size how-to
posts about the legal aspects of getting married)
Thanks for reading!