The rate of divorce has increased since the 1970s, due to shifting attitudes of society and the availability of no-fault online divorce. However there are some people who, for religious and cultural motivations, want their marriage nullified. This article will consider this very old, occasionally used, and much misunderstood remedy of nullity in the family law jurisdiction.
A decree of nullity is granted when a marriage is considered void.
The notion of a void marriage in modern times has the same meaning that it always had in law; primarily that a marriage is not valid because one of the essential elements for a valid marriage is missing.
A void marriage occurs where the parties have participated in a marriage ceremony but the ceremony has failed to have legal effect either due to a fault in the ceremony or one of the parties not having legal capacity to marry. Participation in some kind of recognisable marriage is essential for obtaining a decree of nullity.
When may the marriage ceremony not have legal effect?
- If the person who conducts the marriage ceremony is not an authorised celebrant.
- If the marriage certificate contains crucial incorrect information.
- For example, in the case of Mathus and Pews (2011), a separated but not yet divorced man purported to remarry. The marriage certificate incorrectly stated that he was divorced. The second marriage was declared void.
When may a person not have legal capacity to marry?
- If one party is already lawfully married.
- In the case of a man, if it is proposed he marry his:
- Sister or half-sister
- In the case of a woman, if it is proposed she marry her:
- Brother or half-brother
- If the consent of either of the parties to the marriage was obtained through duress, fraud or mistake, or lacking due to either party not having the mental capacity to enter into marriage.
- The Family Court considered the issue of duress In the Marriage of S . The Applicant and her family had moved to Australia from Egypt. She was pressured by her parents and at age 16 participated in an arranged marriage. The Applicant didn’t want to go through with the ceremony and told the Court that: “. . . My parents insisted I go through with it and I could not stand up against them”. The Court determined the Applicant’s consent to the marriage was obtained by duress and the marriage was void.
- The duress must be experienced at the time of the marriage ceremony.
- The Court applies a very limited scope to the term “fraud” and considers the fraudulent misrepresentation must be so serious that one person, in relying on the untruth, could not be said to have truly consented to the marriage. In Mehta (orse. Kohn) v Mehta  an English woman attended a ceremony with her Indian friend for the purpose of becoming a Hindu. The ceremony was conducted in Indian and she could not understand the ceremony. The woman not only became Hindu but was simultaneously married to her Indian friend. The Court found that the woman had no intention of marrying her friend and declared the marriage void.
- Fraud does not relate to the motives for marriage for each party. For example in the case of Marquis and Marquis (2012) a husband sort a decree of nullity on the basis that he was induced to marry his wife by her fraudulent declarations of love. The decree of nullity was not granted. Fraudulent misrepresentations about financial capacity, qualifications, beliefs or true personality are not sufficient to make out fraud for the purposes of nullity.
Lacking mental capacity
- If one or more of the parties to the proposed marriage are under the age of 18 years. Such a marriage may only proceed with legal effect if approved by a judge of the Family Court. In that regard, exceptional circumstances will need to exist. Such exceptional circumstances do not involve merely pregnancy. Judges have tended to allow the marriage if the parents-to-be are likely to make a success of their marriage.
A decree of nullity
The principal form of relief for a void marriage is a decree of nullity.
The Family Court will only grant a decree of nullity in exceptional circumstances. Obtaining a decree of nullity has increased in complexity leading to serious limitations on the use of this remedy.
A decree of nullity issued by the Family Court of Australia is not recognised by the Catholic Church under Canon Law or by the Islamic faith under Sharia Law. The Catholic Church requires a decree of nullity to be issued by the Catholic Tribunal under Canon Law. The Islamic Faith requires a divorce to be issued in accordance with Sharia Law. If an Islamic couple is not divorced pursuant to Sharia Law the Husband can still insist his Wife is his Wife and she will be unable to remarry.
A decree of nullity or a divorce decree issued by the Family Court are recognised under Jewish Law. However Jewish followers will also need to properly execute a “Document of Severance” (also known as a ‘get’) as a decree of nullity or a divorce decree cannot substitute a Halachic Separation required for future marriage pursuant to Jewish Law.
The Family Court will not recognise decisions and declarations by religious faiths as determinative of the validity of a marriage. In general, there is a clear separation in Australia between religious and civil authority, between “Church and State” as it has been traditionally termed. Provisions relating to divorce under the Family Law Act give the court no discretion to refuse or delay a divorce on the ground that a party has failed to take steps to enable the other party to re-marry in accordance with religious law. Currently it is unclear whether the Family Court can issue injunctions or require undertakings to the effect that a party will take steps to enable the other party to re-marry in accordance with religious law.
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