When there is a question about the legal validity of the marriage (Marriage Act 1961), a marriage may be declared invalid (declaration of nullity) by a court.
Under the Family Law Act 1975, the Federal Circuit and Family Court of Australia and the Family Court of Western Australia have the power to declare a marriage invalid.
What is a declaration of nullity?
Also known as an annulment, a declaration of nullity is a finding that there was no legal marriage between the parties, even though a marriage ceremony may have taken place. The Court may declare a marriage invalid on the following grounds:
- one or both of the parties were already married at the time
- one or both of the parties were under-age and did not have the necessary approvals, or
- one or both of the parties were forced into the marriage under duress.
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.
See Marriage Act 1961 or the Family Law Rules 2021 for more information about applying for a decree of nullity.
How do I apply for nullity?
To apply for nullity, you must file (and serve) an Initiating application. You will also need to prepare an Affidavit – Family law and child support stating the facts relied on to have the marriage annulled, and details of the type of marriage ceremony performed.
For more information, see the fact sheet Applying for a decree of nullity.
I’ve been served with an application for nullity, what should I do?
If you have been served with an Initiating application seeking a declaration of nullity, you can file (and serve) a Response to initiating application (Family law). You must also file an Affidavit – Family law and child support setting out any facts you (the respondent) rely upon in opposing the application for nullity.
For more information about filing a response, see the Response to initiating application kit (Family law).
More information
The Family Law Practice Direction – Nullity and validity of marriage (FAM-NULLITY) sets out the procedure the Court will follow to determine your nullity application.
Legal advice
If you need help to complete the application or are unsure about whether you are eligible to apply for nullity, you should obtain legal advice. For more information see Legal help.
