Divorce and Annulment: The Legal and Religious Implications
What happens when a marriage breaks down and one or both parties want out? Divorce is the most common method of exiting a marriage, but there is another way – annulment. Whether you apply for a divorce or an annulment depends on your particular circumstances, and both have legal and religious implications.
What is annulment?
Annulment is a method within the law that cancels a marriage. In Australia, annulment is referred to as a Declaration of Nullity. If you are granted one, it’s as if the marriage never existed – it gets completely erased from the legal records.
Either party to the marriage can apply for an annulment and will have to show just cause (legal grounds). The following is a list of common grounds for annulment:
- If either party was already married to someone else at the time of the marriage, commonly known as bigamy.
- If either party was forced into the union, then the law deems that the marriage is null and void.
- If either party was too young at the time of marriage. In Australia, the legal age to marry is eighteen. If one of the parties is aged between 16 and 18 and wants to marry, it is only possible to do so if they have the consent of the court.
- If either party was considered mentally incapable, perhaps due to the influence of drugs or alcohol, their consent to the marriage would be deemed uninformed.
- If one party entered into the marriage on the basis of lies or fraud by the other party.
- The law prohibits some marriages, for example, a brother and sister cannot marry.
What is the legal definition of divorce?
Divorce is the legal ending of a valid marriage between two parties. Once the divorce is final in the eyes of the law, both parties are able to remarry.
In Australia, the Family Law Act 1975 established the principle of no-fault divorce. To file an application, you now need only to show that the marriage has broken down ‘irretrievably’, and the courts consider a separation of more than 12 months proof of this.
It’s worth noting that if you separate but then reconcile for three months or more, then the 12-month period starts all over again.
It is also possible to prove separation even if you still live in the same house. You will need to show the court that the marriage has broken down by giving evidence that you meet at least three of the following conditions:
- You sleep in separate rooms
- You don’t engage in sexual activity
- You have separate bank accounts
- You do not eat together
- You have very little interaction
- You have told friends and family the marriage is over
Spiritual and religious considerations in divorce
Within broader society, aside from the legal aspect, it is important to recognise that divorce also has deep cultural, financial, emotional and religious ramifications. Many people consider marriage to be a valued social institution. As such, the divorcee can be left feeling like a complete failure, with the breakdown of a marriage being regarded as a significant loss.
Spiritual and religious beliefs often play a major role in shaping a person’s decisions, thoughts, and feelings concerning divorce. People turn to their churches in times of need for love and acceptance. Separation and divorce presents such a time.
Although attitudes are slowly changing as society’s views on marriage and divorce change, in many religions, divorce is still looked upon unfavourably. It’s for this reason that some choose legal separation as an alternative to divorce – to stay in good standing with a church.
A legal separation can be beneficial in these cases, as it reduces the conflict that could arise if the couple were faced with the difficult decision of either continuing to live together in disharmony or renouncing their religious beliefs.
Depending on the circumstances, an annulment may also be sought.
Spiritual and religious considerations in annulment
If a couple cannot choose divorce or separation, they may try for an annulment if their circumstances permit.
Annulment is often considered preferable as it doesn’t carry the stigma of divorce, and it in some religions, it can allow people to remarry and remain in the church in a way that divorce may not.
An annulment is also preferable in terms of the distribution of property in some cases, because it’s as if the couple never married, which means each partner will be allowed to keep the property that they entered into the marriage with.
So in a nutshell, in some cases a divorce may be preferable over an annulment, and vice-versa. It comes down to the individuals and their particular circumstances. In either case, advice from an experienced family lawyer can help to navigate what can be a very difficult process.