Duress in such cases usually involves threats of force or actual force. Fraud must involve one party misrepresenting their true identity or the nature of the marriage ceremony itself.
If a person has misrepresented their motives for marrying the other person, this will generally not be enough to have the marriage declared void. This was the case in Hosking v Hosking.
In the case of Hosking v Hosking, 46-year-old Ronald George Hosking was curious and asked the court, “can you annul a marriage in Australia?” and applied to the court for a decree of nullity in relation to his marriage to Jie Hu Hosking in Broadbeach, Queensland on 24 November 1993.
Ronald is an Australian citizen, while Jie Hu, though living in Sydney at the time they met, was born in Beijing and was not an Australian citizen at the time of their nuptials.
Ronald claimed that he believed the marriage was real and that he and Jie Hu would live together as man and wife after their wedding. Their marriage was never consummated, and Ronald then filed for a decree of nullity based on the grounds that his consent to marry was obtained through fraud. Contact family lawyers in Australia
Ronald’s application claimed that ‘The respondent fraudulently obtained the applicant’s consent to marriage on the basis that the respondent and the applicant reside or act as husband and wife.’
While Jie Hu did live in Ronald’s home from November until December 1993, their relationship was never romantic, and on moving out, Jie Hu moved in with a new defacto partner.
Ronald’s application to have the marriage declared null and void hinged on the fact that:
‘The respondent married the applicant in order to remain in Australia, on the basis that the respondent’s visa for residency in Australia is due to expire in the near future and at the first opportunity available the respondent left the applicant and shortly thereafter took up in a de facto relationship. The respondent only entered into the purported ceremony of marriage in an attempt to obtain permanent residency in Australia.’
The judge overseeing the case ultimately found the application to fail, as the question of fraud regarding the identity of the other party or the ceremony itself was not adequately addressed in the application.
This case demonstrates the difficulties faced by Australians attempting to have their marriages deemed null and void by the family court system.
In most cases, rather than getting an ‘annulment’ in Australia, people will end up having to go through the traditional process of gaining a divorce.