Marriage: Divorce or Annulment in Family Law?

Written by on May 01, 2018.

I recently spoke to someone who had legally married a few months prior. This person explained that once married, she and her new spouse did not live together as husband and wife. They did not consummate their legal union; meaning they did not have sexual intercourse after they married.   

The client asked how could they proceed to end their marriage. Should they have the union annulled or should they proceed to get a divorce? A very interesting question because there is difference between a divorce and an annulment in  law.

Divorce

A divorce signifies that a valid marriage is over. There are three grounds for a divorce in Canada:

  • Living separate and apart from your spouse for at least one year
  • Cruelty; and
  • Adultery

Annulment

A legal annulment is a declaration by a judge that the marriage is void and never existed in law. The majority of marriages end in a divorce. Marriages that end in annulments are quite rare.

What about those short marriages, of several hours or even days?

Some think that because a marriage is of short duration that an annulment is the way to go but the length of a marriage plays no factor in determining whether or not the Courts will grant an spouses an annulment.

Here are some examples of circumstances that may result in a Court granting an annulment:

  • One or both of the parties remain married to someone else;
  • The marriage was not consummated due to physical inability. It is not enough for one spouse to choose not to consummate the marriage – the spouse has to be physically unable to consummate the marriage. In Canada the Court will not grant an annulment if the spouse knew at the time of the marriage that the other spouse would not be able to consummate their marriage. The person who cannot consummate the marriage cannot ask for an annulment on this ground, it has to be the other spouse who steps forward and asks the Court for the annulment;
  • One or both of the parties was too young to marry. In Ontario you have to be at least 16 years of age so long as you have written consent from both parents to marry, which is required until the age of 18.
  • The marriage was entered into under duress, fear or fraud;
  • One or both of the parties lacked mental capacity to consent to the marriage;
  • The parties are too closely related, such as a brother or sister, or a half-brother or half-sister, including by adoption, as set out in the Marriage (Prohibited Degrees) Act.

There are also religious annulments, which are not recognized by our government or Courts. If you obtain a religious annulment, you are still a married person under Canadian law. A religious annulment may be granted for different reasons than a legal annulment, which you would have to talk to your religious leader about.

It is personal choice on how one should proceed. It is much more difficult to obtain an annulment as often the basis for the Court to grant the annulment have not been established. One benefit to proceeding to obtain a divorce is that the cost is much less than proceeding to obtain an annulment and the process may take less time.

If you are considering a divorce, are in a situation where you think you may be able to obtain an annulment or need to consult with a lawyer about any other family law issues, please do not hesitate to contact me to schedule a consultation where we can discuss your matter. I can be reached via email or by phone at 519.660.7782.

Posted in Family