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Divorce or Nullity?June, 2009 |
There is a common misunderstanding that if one of the parties to a marriage enters it with an improper motive (e.g. immigration), or there is a failure by one of the parties to truly commit to the marriage, then it may be possible to obtain a nullity of the marriage (i.e. as if it had never happened), as opposed to a divorce.
Family Court case law is very clear as to what is required to obtain either a divorce or a nullity.
For a divorce there must be "irreconcilable differences", which is represented by 12 months separation.
For a nullity there must be a failure to comply with the Marriage Act requirements for the marriage ceremony. If someone has entered into a marriage for the purpose of gaining residency into Australia, this will not be a basis for the other spouse to seek a nullity.
This is distinct however, from how the Immigration Department may consider someone's motive for entering a marriage, when determining a residency Application.
Facts:
- The Husband aged 27, was born in Fiji.
- The Wife was an Australian born citizen. The couple went through a valid marriage ceremony in New South Wales, but separated shortly after.
- The Husband applied for permanent residency in Australia on "spouse grounds" shortly after the wedding.
- The Minister for Immigration rejected the Application on the basis that a permanent residency visa normally cannot be granted until 2 years after the application is made and that this process was aimed at testing whether the relationship was continuing 2 years after the visa application.
- The requirements of the temporary visa required that the Husband remain in Australia as the spouse of the Wife.
- The Department of Immigration was not satisfied that the couple had a genuine and continuing marriage relationship.
- The Migration Tribunal was not satisfied that there was sufficient evidence of financial aspects of the relationship. It found that the Husband could not provide a satisfactory explanation as to why he was not living with the Wife.
- The Husband said that the marriage was genuine.
Court Order:
- There was insufficient evidence to satisfy that the Husband and Wife held themselves out to the world as being in a genuine matrimonial relationship.
- The Husband was Ordered to leave the country.
In this case, the Wife could not pursue a nullity of the marriage, only a divorce, and only once there had been 12 months separation.
If you have any questions about this article or would like to make an appointment to discuss your personal circumstances please telephone us on 3221 4300 or email us at law@mlynch.com.au
Disclaimer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes. For further information, please do not hesitate to contact Michael Lynch Family Lawyers on law@mlynch.com.au.