A decree of nullity is a finding that a marriage was void, even though a marriage ceremony may have taken place. A decree of nullity can only be made on very restrictive grounds, and such decrees are rare.

Which court can declare a marriage void?

Under the Family Law Act 1975 , the Federal Circuit and Family Court of Australia (FCFCOA) has the power to make a decree of nullity.

How do I apply for nullity?

To apply for nullity, you must file an Initiating Application. You will also need to file an affidavit setting out the facts relied on to have the marriage annulled. The onus of proof is on the applicant to establish the marriage is void. This is a difficult task to achieve, and the evidence provided must be very specific.

What grounds constitute a decree of nullity?

The Court may declare a marriage void on the following grounds:

• At the time the parties were married, one of them was married to someone else.
• The parties are in a prohibited relationship.
• The parties did not comply with the laws in relation to the marriage in the place they were married.
• Either party was not of a legal age to marry.
• Either of the parties did not give their real consent to the marriage because consent was obtained by duress or fraud.
• Either of the parties did not give their real consent to the marriage because one party was mistaken as to the identity of who they were marrying or the nature of the ceremony.
• Either of the parties did not give their real consent to the marriage because one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

The Court will NOT declare a marriage invalid on the following grounds:

• Non-consummation of the marriage
• Never having lived together
• Family violence, or
• Other incompatibility situations.

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