In certain churches, such as Roman Catholicism, believers may apply for an annulment to enable them to remarry when the circumstances for the annulment are justified. These types of annulment are matters of canonical law and do not fall within the remit of Commonwealth Legislation.
The Federal Circuit and Family Court of Australia can make a declaration of nullity on an application of a party. The effect is that no legal marriage has occurred.
In the past there were various exotic grounds for avoiding a marriage, such as mental defectiveness, impotence, venereal disease or because the wife at the time was pregnant by another man.
The Marriage Act abolished all these grounds:
- Bigamy
- Consanguinity
- Procedural Irregularity
- Lack of consent through duress, fraud, mistaken identity as to party or nature of ceremony or lack of understanding of nature and effect of the ceremony
- A party being of not marriageable age
We will consider each of these grounds in turn:
Bigamy
This is where one party was still legally married to someone else at the time of the marriage ceremony. It does not matter that the party concerned has been separated for many years or their previous spouse has not been seen for a long time.
Consanguinity
The Marriage Act defines prohibited relationships to a marriage as those between a person and their ancestor or descendant and those between full or half siblings.
It includes a relationship involving an adopted person. It is unclear in law whether a marriage would be regarded as a nullity if it took place overseas and were legal there despite the parties being within a prohibited relationship, should it have occurred in Australia.
Lack of consent
There are many instances where this ground could come into use, such as marriages on holidays between intoxicated persons or marriages in nursing homes between one or more demented parties. Evidence of the celebrant in these cases may be vital.
Not of marriageable age
The minimum age is 18. But at 16, an individual may marry an adult with parental or guardian’s consent or approval from the Federal Circuit Family Court of Australia. Permission is usually granted in exceptional cases and will depend upon reasons, level of maturity, financial circumstances and duration of the relationship.
Procedural Irregularity
This can apply if the necessary notice is not given or the celebrant is not authorised.