Annulment vs Divorce – What’s The Legal Difference
First published September 3, 2020 and updated September 19th 2021
The difference between an annulment vs divorce can be confusing. Annulments are similar to divorce in that they both deny the validity of any ongoing marriage. Divorce is the most common way to end a marriage, whereby one spouse may be required by law to prove that their relationship with their partner has irretrievably broken down.
The divorce process often includes both spouses filing for divorce in the family court, agreeing to property settlements and parenting arrangements if children are involved. If the circumstances for an annulment do not apply, then parties will need to wait 12 months before getting a divorce.
What is an Annulment?
An annulment of marriage in Australia can be obtained through the Family Court. A decree nullifying your marriage is something that requires an order from the court, and you’ll have to prove there was no legal union between yourself or any other parties involved.
In relation to family law, an annulment is when a Judge decides no legal marriage existed. If a judge grants an annulment, either by way of a declaration under section 113 of the Family Act, 1975 (Cth) or section 51 of the Marriage Act 1961 (Cth), the marriage is voided immediately. It is a declaration that the parties were never married.
For example, in the case of Nagri & Chapal  FamCA 464 (1 June 2012), Mr Nagri said that he felt forced to marry Ms Chapal due to pressure from his uncle. Mr Nagri and his mother had recently migrated to Australia, and they were both financially supported by the uncle, who not only had posted Mr Nagri’s bond but also obtained work for him.
Mr Nagri’s uncle and mother wanted him to marry Ms Chapal, and although Ms Nagri told his uncle that he did not want to marry Ms Chapal, his uncle insisted that the marriage must proceed and could not be cancelled. Mr Nagri went through with the marriage but then confessed to Ms Chapal that he had only married her out of a sense of duty to his family.
To be in a position to annul the parties’ marriage, Judge Collier needed to be satisfied that when Mr Nagri entered into the marriage and underwent the marriage ceremony with Ms Chapal, that his consent was no real consent because it had been obtained by duress. In considering duress, His Honour said:
“When the ordinary man says he is acting under duress, it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression, be it constraint, threat or otherwise. It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression”.
His Honour felt that Mr Nagri’s consent to the marriage was obtained by duress and therefore granted the annulment.
What Are The Grounds For Annulment
To obtain an annulment, one must prove they have been married in error. The grounds for annulment are limited, and it’s often hard to prove. You will need to show evidence to the court and on what grounds or reason your marriage should be annulled.
One party is typically expected to bear the burden of proof when there’s a legal relationship, and the burden of proof falls on the person wanting to leave the marriage. Notwithstanding if their reasons are valid or invalid, they still need some kind of evidence showing their side while the other person may disagree.
You can apply to the court to have your marriage annulled if:
- You were tricked or forced to marry someone.
- One of the parties to the marriage was under 18.
- You did not understand the marriage ceremony or its consequences.
- The person you married was already married to someone else.
- The person you married is a close relative (parent, grandparent, child or sibling).
- Marriage needs to be entered into voluntarily.
You can apply for annulment any time after the marriage, but as mentioned above, there are many restrictions on what grounds will be considered valid.
Financial Differences For Annulment vs Divorce
After a divorce, spouses are often entitled to specific amounts of money or property. However, they will never have been legitimate in law with an annulment, so these same legally married rights do not apply. Instead, the couple reverts back to where they were financially before their marriage was dissolved.
There are specific legal considerations you need to understand concerning annulment vs divorce. In many cases, an annulment can provide the same legal protections as a legal marriage or living in a de facto relationship—issues like child maintenance payments, child custody arrangements and property settlement agreements. What you are entitled to will depend on how long you were in a relationship, and you should seek legal advice if you have children or property settlement concerns.
Legal Advice on Annulment vs Divorce
Obtaining advice from a family lawyer before proceeding with a divorce, separation or annulment is highly advised. You should consider the complicated nature of your child custody and support obligations as well as property division.
You must understand the difference between annulment and divorce under the law and what rights you have. Not only because it will help protect yourself from any unfortunate events, but also those around you who could be impacted by any separation, divorce or annulment of the marriage.
As you prepare for your annulment proceedings, it is essential that the person who filed on their behalf be served with any paperwork coming from our office. You can serve them by delivering copies directly to them in person.
If you require assistance regarding obtaining an annulment or you would like to discuss your options, please contact one of our team members. We have experienced family law experts and can assist with any questions that may arise during this time.
Frequently Asked Questions
Do I need to arrange child custody and property settlement after the marriage is annulled?
You will have 12 months from the date of your annulment to start property proceedings with the Court if you and your former partner cannot reach an agreement. If you cannot agree on arrangements for your children, you can resolve the issues using family dispute resolution. If that does not work, then the court might be necessary in some cases.
Does annulment of marriage also apply to the religious requirements of a marriage?
Your marriage may not be considered annulled by your religion. Different religions have different conditions regarding annulment; you will have to satisfy the religious requirement if you wish to remarry within your faith. However, you do not have to fulfil the religious requirements to remarry under Australian law.
Can you still marry after a marriage annulment?
It is against the law for you to remarry until your annulment order becomes final. Be aware that setting a wedding date too close may conflict with your new marriage plans. There may be delays with the processing or approval of an appeal, so wait as long as possible before committing yourself fully to a new relationship!
Can an annulment be denied?
Your spouse may argue against your case, and you have no other choice but to receive a no-fault divorce. If the circumstances do not apply, you will need to be separated and divorce proceedings initiated if you want your marriage to be dissolved permanently.