In Friends, Ross and Rachel get drunk in Las Vegas and get married. The next morning Ross says he will get it annulled but he doesn’t because he’s ashamed about getting divorced again.
I don’t know the full plot but someone told me it’s really complicated because Ross still loves her deep down.
Unfortunately (in my opinion) in Australia there aren’t many ‘interesting’ grounds for annulment. I think people sometimes understand that if you haven’t consummated your marriage, or if you regret getting married, or if you have a very short marriage, you can have the marriage annulled. That would make for some interesting litigation but as I say the grounds are a bit different to that.
The difference between a divorce and an annulment, in short, are that an annulment is the Court ordering that the marriage was void (as in, it was never a valid marriage) and a divorce is the Court ordering that the marriage was valid, but has ended.
There are flow on considerations including the entitlement to property settlement and spousal maintenance, presumptions for superannuation benefits, immigration considerations and so on.
In my experience the main reason people have wanted to pursue annulment is because they don’t want to wait 12 months after separation, which you have to do in order to apply for a divorce.
The grounds for annulment are, once you follow the sections around, set out in s23B of the Marriage Act (Commonwealth legislation) and they are:
- Either party was married to someone else;
- The parties were in a prohibited relationship (that’s an ancestor, a descendant or a sibling);
- The marriage wasn’t solemnized properly (the rules about witnesses and celebrants and documents);
- The consent to marry wasn’t real consent because:
- It was obtained by duress or fraud;
- One person thought the other person was someone else, or the ceremony was something else;
- One party was mentally incapable of understanding the nature and effect of marriage;
- Either party was not of marriageable age (16).
Obviously this isn’t intended to be comprehensive advice but if you think any of the above might apply or you want to talk about your options, let me know, it’s really interesting work and I’d be happy to help you.
Adam Bak is Canberra Family Lawyer and Director at Farrar Gesini Dunn, Canberra Office.