Voidable marriages (Australia)
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Difference Between a Void and Voidable Marriage
A void marriage is regarded for all legal purposes as no marriage at all. On the other hand, a voidable marriage was considered a valid marriage until it was annulled by a judicial decree.
Voidable marriages were recognised until the commencement of the Family Law Act 1975 (Cth.)
Under the Matrimonial Causes Act 1959(Cth.) (repealed by the FLA) there were four grounds on which a marriage could be voidable. The part of the legislation considering this was section 21(1); it said:
"A marriage that takes place after the commencement of this Act, not being a marriage that is void, is voidable, where, at the time of the marriage:
(a) either party to the marriage is incapable of consummating the marriage;
(b) either party to the marriage is:
(i) of unsound mind; or (ii) a mental defective;
(c) either party to the marriage is suffering from a venereal disease in a communicable form; or
(d) the wife is pregnant by a person other than the husband, and not otherwise."
Under the Family Law Act 1975(Cth.) a decree of nullity can now be made only if a marriage is void. This act abolished prospectively voidable marriages.
- Dickey, A. (2007) Family Law (5th Ed)