There may be many reasons why a person would want to have a marriage annulled, but there are only a few valid grounds for an annulment.
An annulment can only be granted for very specific reasons, which are discussed below after our BC family lawyer’s overview of the key differences between a divorce and an annulment.
Differences between divorce and annulment
A divorce is a court order which ends a valid marriage. In other words, a divorce presupposes that there was a valid marriage in the first place and that there was a subsequent breakdown of the marriage. A divorce order dissolves the marriage as of the date of the decree of divorce. Conversely, an annulment is an order that the marriage was not valid from the start because there was some defect or disability that prevented the marriage from coming into existence. An annulment has a retroactive effect, which means that it operates as if the marriage never happened. If the court grants an annulment it is not necessary to get a divorce.
How are the grounds for divorce different from the grounds for annulment?
There are three main grounds for divorce in BC, which are:
Living separate and apart for one year;
The grounds for annulment are different and can arise from two types of legal issues:
Lack of formalities – this stems from a failure to meet the legal requirements to solemnize a marriage, for example, if the person who officiated the wedding ceremony was not legally authorized to do so; and
Lack of capacity to marry – this includes lack of capacity to give consent to marry due to age or mental impairment, as well as lack of capacity to enter marriage on legal grounds such as a subsisting legal marriage to someone else.
What are some specific circumstances where an annulment will be granted?
Here are some specific circumstances which, if proven, form valid grounds for an annulment:
• Prior existing marriage. As mentioned above, if one spouse is already validly married to someone else and has not ended the first marriage by way of divorce or annulment (or death of their first spouse), the second marriage to another person is not valid.
• Under the age of consent. A marriage can be annulled if one or both spouses was under the age of 19 at the time of the marriage ceremony and the marriage licence was obtained without the consent of the minor’s parent or guardian.
• Related closely by blood or adoption. BC and Canadian laws prohibit marriage between certain categories of relatives. A marriage between a brother or sister, half brother or sister, parent, grandparent, child, or grandchild can be annulled.
• Duress. A person cannot be forced into marriage against their will. An annulment will be granted where the party seeking the annulment can meet the stringent legal test of proving that his or her mind was so overcome by oppression (by the other spouse or someone else) to the extent that there was an absence of free choice necessary for valid consent.
• Inability to consummate the marriage. An annulment may be granted if one of the parties is unable to consummate the marriage due to impotence or incapacity to have sexual intercourse due to a physical inability or mental condition that existed at the time of marriage.
• Unable to consent to marriage due to mental illness, incapacity, or intoxication. The test is whether the person had mental capacity to understand the nature of the marriage contract and the duties and responsibilities that it entails at the time of the solemnization of the marriage.
What is not a valid reason for an annulment?
Generally speaking, the following reasons will not form the grounds for an annulment:
• Mental illness is not in and of itself enough to invalidate a marriage; the issue is whether the person who suffers from mental illness was able to give consent to the marriage.
• Deception or misrepresentation are not generally grounds for annulment, unless one spouse was deceived as to the identity of the person they married – in other words, if a spouse married someone other than the person they intended to marry.
• The intention of the parties does not matter. For example, a marriage cannot be annulled on the basis that one spouse married the other as a means of obtaining permanent residence in Canada.
• The length of the marriage is not a valid ground for annulment, regardless of how short-term the marriage may have been.
• Religious reasons will not form the grounds for a legal annulment. Spouses may be able to obtain a religious annulment, but that does not legally annul the marriage. The spouses remain married until a court declares an annulment on other grounds or orders a divorce.
What are the consequences of an annulment?
A party to a marriage that has been annulled may still have legal responsibilities to the other party as if they had been validly married. For example, the parties can still make claims against each other under BC’s Family Law Act for orders concerning child support and the parenting of children, as well as the division of property and debt. There are many other implications that can flow from an annulment – you should consult with to an experience family lawyer for more information.
Our experienced BC family lawyer is here to help
If you need advice from a BC family lawyer with respect to whether you have grounds for annulment of your marriage, contact Valerie M. Little Family Law Corporation. Ms. Little's practice is exclusively devoted to issues of family law in Burnaby, Coquitlam, and New Westminster. If you cannot annul your marriage, our legal separation lawyers can help you with alternatives. No matter what family law questions or issues you might be facing, we are here to help. You will receive attentive care and understanding at the office of Valerie M. Little. For more information about our family law office or to schedule a consultation with our trusted family lawyer, please call us today.
This blog is intended as general information only and is not intended to provide legal advice for any particular situation. Please consult a qualified family law professional before making any family law decisions.