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Annulment, bigamy: What do courts consider when voiding a marriage?

By February 7, 2021February 23rd, 2024No Comments

Annulment is pretty rare in the Australian family courts, but it does happen. A recent case (given the pseudonym of Chabra & Chabra) heard in the courts dealt with bigamy, one of the reasons why a marriage can be annulled in Australia. Let’s have a quick look at this case.

This matter concerned a couple who had been married in Queensland, with a ceremony appropriately solemnised by a registered marriage celebrant. However, it later turned out that the husband was still legally married to someone else at the time. On application to the family courts, the wife was able to successfully obtain an annulment – in other words the marriage was completely cancelled as if it had never happened.

The husband, who was born overseas, had married his first wife in another country but had never actually divorced her. He had, however, presented to the Australian wife and marriage celebrant that he had been divorced, even producing a document from the other country purporting to authenticate the divorce registration. He and the Australian wife also both signed a “Declaration of No Legal Impediment to Marriage” document in which both stated that they were divorced persons.

The family court said there was no doubt the husband had been married before, and said the question was whether he had ever been divorced. In deciding that he had not in fact ever been divorced, the court considered:

  • The fact that the husband asked the Australian wife to have the first wife become a second partner in their relationship;
  • The husband’s transfer of large sums of money to the first wife;
  • The fact the first wife’s passport stated she was still married to the husband; and
  • The fact that the other country’s High Commission had concerns over the “divorce registration” document’s authenticity.

Further, the husband never challenged the wife’s version of events “despite copious opportunities to do so”; all he did was continue to assert he was divorced.

In the end, the family court used its discretion to determine that on the balance of probabilities, the man had never in fact been divorced from the first wife.

What else may cause the annulment of a marriage?

Apart from the reason that a marriage partner is already married and not divorced, and is therefore committing bigamy, the courts may declare a marriage invalid on the following grounds:

  • consent was not given freely but under duress or fraud; i.e. you were coerced to go through wedding against your will;
  • a mistake was made as to the nature of the ceremony (not a mistake in choice of partner);e. perhaps you thought you were signing up for a mediation course in another language, not the legal bond of marriage;
  • one party committed fraud as to their real identity;
  • either of the parties was under 18 years of age at the time of the marriage;
  • the parties are in a prohibited relationship (such as a brother or sister);
  • the parties did not comply with the laws in relation to the marriage in the place they were married. For example, if you got married in Bali, you still need to have complied with the Balinese/Indonesian requirements for a legal marriage; or
  • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

Despite Hollywood mythology, annulment of marriages will not be granted on the grounds of non-consummation. Nor will the courts void a marriage because the parties have not lived together or if there are other “incompatibility situations”.

In the Chabre & Chabra case, note that the fact that the husband had told the Australian wife before their marriage that he was divorced, and showed her the dubious “divorce registration” document, it’s possible that the argument of fraud could also have been pursued.

You can read this judgment in full here.

Do you have any queries about the validity of your marriage, or any other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to discuss your options. Your first no-obligation conference is free.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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