Apart from divorce, nullity constitutes another way of bringing marriage to an end. However, family lawyers will advise you that in contrast to divorce as the ending of a valid marriage, a declaration of nullity under Australian law implies that there was no legal marriage between the parties, notwithstanding the fact that parties might have held a marriage ceremony.
As a matter of Australian law, it is a prerogative of the Family Court of Australia to declare a marriage invalid. In making decision on the legal validity of a marriage, the court considers the following factors: 1) whether the parties were already married at the time of their marriage ceremony; 2) whether the parties were underaged and did not have the necessary approvals, or 3) whether the parties were forced into the marriage without their free will (under duress).
Here, it is extremely interesting to note that the court will not declare a marriage invalid on a variety of grounds, such as family violence, failure of the spouses to live together, non-consummation of marriage, etc.
According to Family Law Act 1975, the Family Court of Australia and the Family Court of Western Australia have subject-matter jurisdiction to declare a marriage invalid. In order to nullify the marriage, the interested party must submit to the court an initiating application. In addition to the application, the party has also to prepare and file an affidavit stating both the facts relied on to have the marriage annulled and details of the type of marriage ceremony performed.
Legal practice of marriage annulment in Australia
Australian courts have developed specific approaches to the problem of nullity of marriage. Thus, in Miller’s case, the court rendered the order for dissolution of Mr. Miller’s first marriage by reason of his wife’s application.[1] The legislation of Western Australia at that time regulated that after the expiration of tie, fixed by the order, on application being made the final order might be rendered. An application for a final order was never made and so the order nisi never became absolute. Unaware of this, Mr Miller decided to marry Mollie Wells in 1959.
In 1967, Mr Miller decided to marry for the third time, the respondent Margaret Miller. Mollie Wells was alive at the time of the marriage and there had been no application for divorce. Vera Mellor deceased in 1970 after the third marriage. The court rendered an order dissolving the marriage with Margaret in the Family Court of Australia in 1979. In response to an application for a settlement of property before the court, the husband alleged that the court did not have jurisdiction because there had not been a valid marriage. A number of legal issues were directed to the Full Court in accordance with Section 94A of the Family Law Act. One question of assistance in the case was whether, when the decree became absolute in the third marriage, it was valid irrespective of the facts as delineated so the court had jurisdiction.
As far as the question of jurisdiction is concerned, the court decided that there was a sufficient connection between the persons and the court in accordance with Section 4(1)(ca). Also, the court took into consideration the legal effect of the decree absolute. Concerning the question of nullity, the court found that there had been a number of cases in the United Kingdom and a lesser number of cases in Australia pertaining to the overall issue of nullity, especially concerning the conditions under which a decree absolute may be regarded as a nullity or impeached in subsequent proceedings. However, the court extracted some principles of Australian and English law that might help understand how the problem of nullity should be regulated. Thus, under Australian legislation, both pre- and post-1975, the legislative accent is made on the inviolability of decrees once they became absolute, whereas in the United Kingdom, the continued connection between decree nisi and ancillary proceedings and the general prohibition against a decree nisi becoming absolute until ancillary matters are finalised may have resulted in a different accent.[2]
[1] Miller [2009] FaCAFC 127.
[2] Purse v. Purse (1981) 2 All E.R. 465.
