Section 51 of the Act sets out that an Application for a Decree of Nullity must be based on the grounds that the marriage is void. A void marriage is of no effect in law. It is not a marriage, whether or not a decree declaring it void has been pronounced. The decree is simply a declaration that confirms the fact that there was never a valid marriage.
The grounds for a decree of nullity of marriage as set out in s 23 and 23B of the Marriage Act. The grounds under s 23B are as follows:
1. A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
If you or a family member has been forced into a marriage, or an arranged marriage it may be possible to obtain an order for nullity on the grounds of duress.
In cases of duress, the applicant will argue that the consent of the parties was not real consent because it was obtained by duress. In making a finding of duress the Court does not need to find that both parties were under duress. The court merely needs to be satisfied that a declaration of nullity be made were one of the parties consent was not real consent.
In such cases, it is the burden of the applicant to establish on the balance of probabilities that by reason of duress or oppression their consent to the marriage should not be considered as real or true consent.
In the decision of Cooper v Crane 1891 the Court said:
“On these facts, is the petitioner entitled to a decree? On the one hand, it is clear law that if she did not in fact consent to the marriage, the Court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the matter annulled...In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things - either that she was so perturbed by terror that her mind was unhinged and she did not understand what she was doing ...or that though she understood what she was doing her powers of volition were so paralysed that, by her words and acts, she merely gave expression to the will of the respondent and not her own”.
The decision of S & S [1980] involved a young woman of Egyptian origin who submitted to an arranged marriage due to the coercion of her family.
In that matter, Watson J held at 75,178:
“... She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and culture that demanded filial obedience... If she had “no consenting will”, it was because these matters were operative – not threats, violence, imprisonment or physical constraint.
His Honour went on to say at 75,179 as follows:
“The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. A sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety – of any person solely or partially responsible for the oppression”.
He said at 75,177-8:
“When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression be it constraint, threat or otherwise. It is the effect of oppression on his mind that should be the operative factor, not the form of such oppression”.
Finally, his Honour went on to say at 75,179:
I cannot see how I can read down the natural and ordinary meaning of “duress” as equated to “oppression” or “coercion” to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.
In Thorne v Kennedy [2017] HCA 49, the High Court sought to define the elements of duress:-
“The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri:
“It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.”
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