Chapters

Dissolution of Marriage

Once the court is satisfied that the 12 month separation period has passed and that proper arrangements have been made for the children, it will grant a decree nisi. The decree nisi automatically becomes final or absolute one month later and a sealed copy of it is sent to the parties in the mail. Technically the parties are still married until the order becomes absolute and they cannot remarry till then. This waiting period can be shortened in cases of urgency or hardship.

If the parties become reconciled during this period, they must apply to the court to have the decree nisi set aside. Otherwise the marriage will be dissolved when the decree becomes absolute.

Annulment

An application for a ‘decree of nullity’ is an application for an order from the Court that a marriage be declared invalid. Invalidity may result from one of the following:

  • either party was already married at the time of the ceremony (that is, bigamy);
  • the marriage was within a prohibited relationship (for example, sisters cannot marry brothers, parents may not marry children, step-brothers may not marry step-sisters (s23, Marriage Act);
  • there was no consent by either or both parties to the marriage (for example, through fraud, duress, mistake or mental incapacity);
  • the ceremony was invalid (e.g. improperly appointed celebrant); or
  • the parties or one party were not of marriageable age.

Contrary to common belief, a marriage can no longer be annulled on the grounds that it was ‘unconsummated’.

Nullity proceedings are begun by filing an application at a Family Court Registry. The application must include an affidavit setting out all the relevant facts and circumstances evidencing the invalidity (Reg 4.29, Family Law Rules).

Parties to a void marriage may remarry at any time without entering a bigamous relationship. Children born of a void marriage are treated equally with legitimate children.

A party to a void marriage who honestly believed at the time of the ceremony that the marriage was lawful will be treated as a legitimate spouse for the purpose of property settlements and maintenance awards under the Family Law Act and for probate purposes.

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