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Is Your Marriage Void?

| Family Law, Child Support, Children's Issues, Divorce, Separation

The definition of marriage in Australia has been a topic of significant debate of late, with recent changes to the law same sex couples to legally marry. Notwithstanding abolition of the requirement that marriage be between and man and a woman, other requirements remain which must be satisfied if a marriage is to be valid.

The Family Court has the power to declare void any marriage that does not meet the requirements set out in the Marriage Act. Putting aside the issue of gender as Australian parliament has now done, the remaining elements to a legal marriage in Australia are:

1. Exclusivity

Exclusivity refers to the prohibition against a person having multiple spouses. Where a married person remarries without first having become divorce, the later of the unions will be void. Further, such conduct amounts to bigamy and is punishable by imprisonment for up to 5 years.

2. Consent

The requirement of consent is broad, but generally refers to the mutual and full understanding of each party in agreeing to enter into the union.

A recent family law case has shown that marriage can also be void on the basis of a parties’ mental health issues if it they have the effect of rendering a person “mentally incapable of understanding the nature and effect of the marriage ceremony.” In this instance, the Court held that the woman, who provided to the Court a medical report confirming that she was at times “mentally unsound”, was unable to consent to the marriage due to her bipolar affective disorder, which was exacerbated by the recent passing of her former spouse.

In addition to limitations arising from mental health issues, a party’s capacity to understand the effect of a marriage ceremony may be limited on account of:

      a) a parties’ inability to speak or understand a particular language;

      b) the age of a party;

      c) any mistake as to the identity of a party to the union.

Where a union is entered into under duress to either party, it is also likely to be void.

Significant implications can attach to a marriage being declared void. If you require advice in relation to marriage or any other family law matter, the team at Robinson Gill can help. Call 9890 3321 to make an appointment to speak with one of our specialist lawyers today.

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