In order to successfully annul your marriage, your situation needs to meet the legal requirements and you need to get the appropriate declaration from the court which states that your marriage is invalid. This way your marriage will be considered to have never occurred in the eyes of the law.
Annulment, Separation & Divorce
A legally invalid marriage is eligible for an annulment, whereas a legally valid marriage is not. A legally valid marriage is eligible for divorce, which is the legal end to a marriage, and the first step of divorce is a separation. If you get an annulment, it is unnecessary to get a divorce as the marriage was considered invalid to begin with.
Some people would rather have an annulment of marriage to a divorce due to a negatively associated reputation of a divorcee or because it may diminish prospects of re-marriage within specific cultures. It is difficult to get a marriage annulled, but there are circumstances where it is possible. Such reasons include capacity issues and non-consummation of the marriage.
Criteria to Annul a Marriage
In order to obtain an annulment of a marriage, there must be a legal defect in the marriage. A legal defect includes capacity issues meaning either one or both spouses were not in a legal position to enter a marriage. For example, if one spouse had a pre-existing marriage at the time of the ceremony, the married spouse did not have the capacity to enter the subsequent marriage, rendering it invalid. Another example of a spouse lacking capacity is if one spouse was under the age of majority at the time of the ceremony.
If the spouses later discover they are closely related by blood or adoption, this can call the validity of the marriage into question as well. Further, spouses may lack the mental capacity to enter a contract of marriage whether due to intoxication or lack of comprehension.
Moreover, although the test is complex and must be proven at a high standard, capacity issues can result from entering the marriage as a result of fear, fraud or duress. As an example, in R.H. v. R.T., 2011 BCSC 678 (CanLII), one spouse alleged duress as a ground to annul a marriage. The court analyzed the circumstances of duress by assessing the following factors:
The emotional state of the applicant at the time of the ceremony; and,
The vulnerability of the applicant; and,
The time between the coercive conduct and the ceremony; and,
Whether the marriage was consummated; and,
Where the spouses resided during the marriage; and,
The time taken to initiate annulment proceedings.
The court emphasized the high threshold of this test and found only when the emotional state and mental ability of the applicant is completely overborne so as to vitiate the consent to the marriage, the court will annul the marriage. Although the applicant in this case was depressed and the court found that some coercion existed, the judge did not grant the annulment since there was not a complete lack of consent at the time of the marriage.
Conversely, in S.K.S v T.S.A, 2002 BCSC 1472 (CanLII), the applicant’s marriage was arranged to the respondent by the elders in their respective families. Even upon moving in together after the marriage, the parties were never truly alone to learn about each other and did not consummate the marriage. Finally, when the applicant learned that the respondent had been imprisoned for several years, she could not accept the respondent as her husband based on such a gross misrepresentation of his character nor could she possibly consummate the marriage. The court found that there is no public policy reason to promote this type of marriage and granted the annulment.
How to get a Marriage Annulled
You must apply to the British Columbia Supreme Court to annul a marriage based on a valid reason that calls the validity of the marriage into question. This process is complex, expensive and requires a court appearance. In most cases, annulments are not granted even where the other spouse does not contest them. Although there is no time limit to seek an annulment, the court will look at how long the applicant waited before beginning the annulment process. Thus, the sooner after the marriage you apply for an annulment, the better your likelihood of obtaining an annulment order.
You will have several questions about this process and whether your marriage would qualify for an annulment and our experienced lawyers are here to help guide you.
Religion & Annulment
A religious annulment and a legal annulment are not synonymous. Some religions may recognize an annulment of a marriage in the eyes of the religion, however, under Canadian law, the spouses remain married.
For example, in the Catholic Church, you can annul your marriage on the ground that a future condition was attached to your decision to marry, such as completing your education, and that future decision was not subsequently honoured. While you may obtain a religious annulment on these grounds, you would still be legally married under Canadian law.
Let Valerie M. Little Assist You for Family Law in Langley, Maple Ridge, Coquitlam or New Westminster
It can be a complex, emotional and expensive process to end a marriage. With the help of our lawyers, we can help you navigate the legal system and pursue the option that is right for you. Call us at 604-526-3333 for a family lawyer in Langley, Maple Ridge, Coquitlam and New Westminister. Our legal separation lawyers can help you with an alternative if you cannot annul your marriage.