1. TOPIC 3:
NULLITY
Family Law Topic 3

2. Preliminary Matters:
Principal relief is defined in section 4(1) FLA ie proceedings within para (a) and (b) of definition of “matrimonial cause” in s 4(1)
no definition of ancillary relief
3 categories of proceedings:
divorce (sS 48, 49 and 50); or
nullity (sS 51 & 52); or
declarations of validity/invalidity of marriage or divorce (s 113)
Family Law Topic 3

3. Preliminary Matters: Topic will be divided into two sub-topics:
(a) Nullity of Marriage (applications)
(b) Void Marriages
(types of nullity)
Family Law Topic 3

4. (1) Nullity of Marriage Preliminary matters:
distinguish between nullity and divorce
void marriages - nullity application or declaration of validity
(a) Ecclesiastical Law
void and voidable marriages
illegitimacy (children)
Family Law Topic 3

5. (b) Matrimonial Causes Act 1959 s 18(1) 9 void grounds: bigamy
consanguinity
affinity
non-compliance with formalities
duress
fraud
mistake
mental incapacity
under age
Family Law Topic 3

6. (b) Matrimonial Causes Act 1959 s 21(1) 4 voidable grounds
non consummation
unsound mind
V. D.
wife pregnant to another man
Family Law Topic 3

7. - jurisdiction: divorce: s 39(3) and nullity 39(4)
(c) Family Law Act 1975
Section 51 Cth power
jurisdiction od Court for nullity, divorce and declarations of validity – s 39(1) FLA
Note: FCCA does NOT have jurisdiction in nullity or declaration of validity
- jurisdiction: divorce: s 39(3) and nullity 39(4)
- nullity: Aust citizen; ordinarily resident or present on date when application
filedmarriage void
Also see Rules (as to requirements and form)
Family Law Topic 3

8. Nullity – elements to prove
prove ‘marriage ceremony’
Ground of jurisdiction
Grounds for nullity ie infringes requirement for essential validity of marriage ( grounds originally in s 51 FLA, then in 1976 transferred to s 22 and 23 Marriage Act; then in 1978 to give effect to Hague Convention on the Celebration and recognition of the validity of Marriage; then in 1986 – s 23B MA for Australia citizens
S 23B – capacity to marry
S 11 – marriageable age
Family Law Topic 3

9. (2) Void Marriages Section 23B Marriage Act (a) Types
(compliance with) formalities
capacity
consent
but note s 48 Marriage Act
Family Law Topic 3

10. (b) Capacity to Marry Sex!: see s 5 definition) also note s 46(1):
‘Marriage, according to law in Australia is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.
Family Law Topic 3

11. also see [ss 88D(2)(b), 88D(3)]
(b) Capacity to Marry
Age!:
see ss 11, 23B(1)(e)
also see [ss 88D(2)(b), 88D(3)]
Family Law Topic 3

12. Penalties under both Marriage Act and NSW Crimes Act
(b) Capacity to Marry
Bigamy!:
s 23B(1)(a) [s 88D(2)(a)]
Penalties under both Marriage Act and NSW Crimes Act
Family Law Topic 3

13. Prohibited relationship!: s 23B(1)(b) [s 88D(2)(b)]
(b) Capacity to Marry
Prohibited relationship!:
s 23B(1)(b) [s 88D(2)(b)]
Family Law Topic 3

14. grandmother mother sister/half daughter granddaughter grandfather
Man cannot marry:
grandmother
mother
sister/half
daughter
granddaughter
Woman cannot marry:
grandfather
father
brother/half
son
grandson
* Adopted and ex-nuptial children included
Family Law Topic 3

15. s 23B(1)(d)(ii) [s 88D(2)(d)]
(b) Capacity to Marry
mental incapacity!:
s 23B(1)(d)(ii) [s 88D(2)(d)]
Family Law Topic 3

16. (b) Capacity to Marry mental incapacity!: s 23B(1)(d)(ii) s 88D(2)(d)
Family Law Topic 3

17. - s 23B(1)(d)(i) [s 88D(2)(d)]
(c) Consent to Marry
duress:
- s 23B(1)(d)(i) [s 88D(2)(d)]
Family Law Topic 3

18. - s 23B(1)(d)(i) [s 88D(2)(d)]
(c) Consent to Marry
fraud:
- s 23B(1)(d)(i) [s 88D(2)(d)]
Family Law Topic 3

19. - s 23B(1)(d)(ii) [s 88D(2)(d)] - mistake as to identity
(c) Consent to Marry
mistake:
- s 23B(1)(d)(ii) [s 88D(2)(d)]
- mistake as to identity
- mistake as to the ceremony
Family Law Topic 3