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 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.
You will also need to pay the filing fee. The current fees are available on the fees page.
In some cases, for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. See the Guidelines for reduced fee – divorce and decree of nullity application.
The Court does not set the fees payable. Court fees are set by Federal Government Regulations.
For a step-by-step guide to filing the Initiating Application see How do I eFile?.
Once you file your application, you are required to serve your application and any supporting documents on the other party (known as the respondent). The application must be served as soon as practicable by special service. For information about serving the application see How do I serve family law documents? and the Service kit.
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 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).
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law: