Amity Xu* and Jeff Li
Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. Please contact the Law Office of Jeff Jiehui Li or another experienced family lawyer if you are concerned about your family law issues.
Though the most common way of ending a marriage is divorce, annulment may be more appropriate in certain circumstances. This blog will look into annulments: what they are, what sets them apart, and when to consider getting one.
Annulments render a marriage null and void, as though it never happened in the eye of the law. Divorces, however, end legally valid marriages. The key difference between annulment and divorce lies in how the marriage is treated.
Grounds for an Annulment
Getting an annulment entails proving that the marriage was legally invalid. Reasons may include:
- One of the parties was legally married to someone else at the time of the marriage;
- The parties are too closely related, whether biologically or through adoption;
- One of the parties is under the age of 18 at the time of the marriage and did not have parental consent;
- One of the parties did not have the capacity to marry or was unable to consent to the marriage;
- One or both of the parties entered into the marriage under duress, fraud, coercion, or fear; and
- The marriage was not consummated.
The most common ground for annulment is the non-consummation of the marriage, but it can be difficult to prove legally. Refusal to consummate does not suffice; intercourse must have been impracticable or there must be some incapacity (Doiron v. Lawson; Khan v. Mansour).
Do note that the length of marriage is not a ground for annulment. Marriages that lasted for a few days cannot be annulled solely due to their brevity. In Canada, there is typically no time restriction after the marriage to get an annulment; however, most occur within the first year or two of marriage. This reduces the complexity of dividing assets, and depending on the ground for annulment, may make it easier to prove. The court will also consider how long you waited before filing for an annulment, so it is recommended to do so quickly.
Application for an annulment, or a divorce?
If you may claim both annulment and divorce, which way should you go? Annulments are rather uncommon in Canada. Divorces have become increasingly commonplace, less stigmatized, and usually relatively easy to obtain, which makes divorce a better choice in most situations. However, annulments may still be preferrable in some circumstances. As the court noted in Lowe v. A.A., Canadian courts encounter many issues “involving families with diverse cultural and religious norms surrounding marriage.” Some cultures may still stigmatize divorce, to which annulment may be a more acceptable legal solution. It is also still relevant when considering spouses who were deceived, misled, or forced into marriage, and wish to void their unwilling or fraudulent marriage.
Like divorce, annulment only deals with a marriage and renders it invalid. If the parties’ relationship involves children and property, there may still be such claims as parenting, child support, spousal support and property. If granted, annulment may make some of these issues more straightforward, or more complicated, depending on the circumstances. It is advised that you speak with a lawyer before proceeding.