Marriage annulment and divorce are two ways you can end your marriage – but when it comes to an annulment vs divorce, they each have very different consequences which will require guidance from family court lawyers. It is important to understand the difference between divorce and annulment and which of these two options is the right one for you when you no longer wish to be married to the person who you have legally wed.

In this article, we’ll cover:

Annulment vs Divorce: A cartoon image of a man and women looking distant from each other with a child in the middle

What is Marriage Annulment?

Marriage annulment means that your marriage is declared null and void. It is as if the marriage never existed at all once it has been annulled. There are very limited circumstances in which it is possible to obtain an annulment. A judge may grant an annulment only if one of the following is true:

  • Your marriage is to a close relative like a parent, a child, a grandparent or a sibling.
  • One or both spouses were already legally married at the time that you wed.
  • You did not have the mental capacity to agree to marry or to understand the marriage ceremony at the time when you entered into the marriage.
  • Either spouse was under the age of 18 at the time the marriage occurred.
  • The marriage was entered into under conditions of fraud or duress (i.e. you were forced into marriage because of threats or circumstances).

If you believe one of these circumstances applies to your marriage, Owen Hodge Lawyers can help you to apply for an annulment of your marriage in the relevant court. Your divorce lawyer can help you to go through the process of getting your other spouse served, representing you in a hearing to determine if the marriage is within the legal grounds for annulment, and making the most convincing arguments possible for why the marriage needs to end.

What is a Divorce?

Divorce doesn’t declare your marriage void; it dissolves the marital union while still recognising that the legal relationship existed for a period of time. This means that your marriage is recognised, but the court makes an order that dissolves the partnership on a permanent, legally valid basis. Any couple can divorce if there are irreconcilable differences and either or both spouses no longer wish to remain in the marriage. In other words, if the marriage has irretrievably broken down then a divorce may be granted.

What are the Key Differences between a Marriage Annulment vs Divorce?

The key differences between a marriage annulment vs divorce is that divorce dissolves a valid marriage, while annulment declares a marriage null and void (which means that it does not satisfy the requirements of a valid and legal marriage). Some key factors include:

  • Conditions for annulment are more restrictive. If you do not fit the narrow grounds for obtaining an annulment, your only option will be divorce.
  • Annulment means you won’t be considered divorced. This is important to some people if they don’t want a subsequent relationship to be a second marriage. However, it is important to recognise the difference between an annulment by the courts and annulments by a religious institution, such as the Catholic church for example. The decision of your priest, pastor, rabbi or other religious leader to annul a marriage has no impact on whether a judge will annul the marriage and vice versa.
  • Annulment doesn’t have a concurrent process for resolving child custody or property settlement agreements. The divorce process makes it possible for you to negotiate these issues with your spouse or have the court make decisions on these matters if you cannot agree. When annulling a marriage, the court declares your marriage void but does not help you with the practical process of ending your shared life. If you annul your marriage, property has to be divided up within 12 months of the date of the annulment. If you cannot come to an agreement on the issues of property division or custody division, you will need to file a separate application with the court to help resolve these issues. Family dispute resolution can sometimes be attempted to help you agree on the issues without involving the courts.

After considering these key differences between annulment vs divorce, you can decide which one is right for you, in your current circumstances.

Whether you decide to annul your marriage or whether you want the marriage dissolved through the process of divorce, you are not permitted to remarry until the legal process ends. This means you should not try to get married again until the annulment order becomes final or until the divorce order becomes final.

Ending a relationship can be stressful, and it can also have a significant impact on your future. You need to protect your access to shared marital property and ensure that you do everything you can to protect your relationship with your children. This means making smart choices about whether to divorce or annul your marriage and engaging a legal advocate who is on your side. They will ensure your best interests are looked after as you go through the process of dividing property, assets and determine custody issues.

Owen Hodge Lawyers have extensive experience representing clients throughout Australia during both annulment and divorce proceedings. We can provide you with the legal advice necessary to protect your interests from the time that you decide you no longer wish to remain married until your case has been finally resolved. Or if you just need some guidance on understanding the difference between annulment vs divorce, we are here for that too.

Call today at 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with one of our family law experts.

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