Annulment or divorce – is there a choice?
The new wife was shocked to discover there was a ghost in her marriage. The ghost was always there, effectively a third person in the marriage. There she was, up on the mantelpiece in a jar. Her husband was so obsessed with his late first wife he refused to bury her ashes.
The new wife told the Family Court her husband constantly compared her unfavourably to his late wife. He said nothing could ever be as good again as life with his dearly departed. She felt she’d been pushed into the wedding by her friends, family and priest to help the grieving man.
A deeply religious woman, she wanted the court to declare the marriage annulled. Her church did not permit divorce, but an annulment would mean that the marriage was void, that in effect, she was never married.
The law does allow a court to declare a marriage a nullity, but the grounds for a legal annulment are very limited and only given on specific grounds. One of these is bigamy, where one of the parties was already married to someone else. (For more information, please see If a person with a secret second family dies, who inherits their estate?)
Other grounds for declaring a marriage to be a nullity are that the two people are too closely related to be allowed to marry; it was a phony ceremony where the requirements of the Marriage Act were not met; one side did not really consent to the marriage; one party was not of marriageable age; the wedding wasn’t conducted by a recognised member of the clergy or registered celebrant and didn’t have the officially required paperwork; fraud, where a person pretends to be someone else, such as a having a false identity or hiding their true gender; where there have been coercion or threats forcing a party to marry; and where there is a lack of mental capacity to understand the ceremony.
Same-sex couples who married in the ACT for those few days it was legal had their marriage annulled when the law was overturned by the High Court.
The Family Court doesn’t grant annulments easily. If a bride pretends to be pregnant to the groom it hasn’t been accepted in court as grounds for annulment. The notion of a marriage never being consummated may exist in old movies, but not in law.
As for the wife and the ghost – she lost her case even though the husband agreed to an annulment. The Family Court judge ruled the wife did not lack judgement or her own will when she married him.
However, the church can grant its own annulment. It is not recognized under civil law, but would clear the wife’s religious conscience to remarry if she gets a legal divorce. The only ground needed for divorce is an irretrievable breakdown of the marriage and to be separated for 12 months.