Introduction
An annulment of marriage is a legal declaration that a marriage was never valid from the beginning, effectively rendering it as if it never existed. Unlike divorce, which ends a legally recognized marriage, annulment is granted only under specific circumstances. The primary grounds for annulment include lack of consent, fraud or misrepresentation, incapacity to marry, mental incapacity, and non-consummation.
What is the Difference Between Nullity and Divorce?
Professor H.R. Hahlo has stated, “A decree of nullity is not a divorce by another name.” He explains the distinction as follows:
- Divorce is based on a cause that arises after a valid marriage has come into existence (e.g., adultery, cruelty, supervening insanity, or irretrievable breakdown of marriage). A decree of Divorce dissolves the marriage from the date it becomes absolute (ex nunc).
- Nullity is based on a cause that existed at the time of the marriage, such as a prior existing marriage, a relationship within prohibited degrees, or insanity at the time of marriage. Depending on the grounds of annulment, a decree of nullity either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc).
Over a century ago, in Reid v. Aull, the court held that “Divorce assumes the previous existence of the marriage status. Its result is to put an end to that status without affecting its existence in the past.” Conversely, in Kerr v. Kerr, the court ruled that “Suits for nullity on the ground of insanity seek not to dissolve an existing marriage, but to declare that no marriage exists.”
A divorce can only be granted where a valid marriage exists and the cause for ending the marriage arises afterward. A nullity, however, may be granted in two situations:
- Where no valid marriage existed from the outset.
- Where the marriage was validly entered into, but a cause for nullity existed from the beginning.
What Are the Forms of Nullity?
The grounds for nullity fall into two categories:
- Void ab initio (from the beginning): These marriages are considered never to have taken place, meaning no legal declaration is required to render them invalid.
- Voidable marriages: These are initially valid but can be annulled upon proof of certain grounds. A voidable marriage is considered to be a valid marriage, with all its rights and consequences, unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”
Marriages Considered Void Ab Initio:
- One or both parties were already married at the time of marriage.
- One or both parties did not consent to the marriage or lacked the mental capacity to consent.
- The parties are related within prohibited degrees.
- One or both parties were underage at the time of marriage.
- The marriage ceremony was incomplete.
Marriages Considered Voidable:
- The marriage was entered into for fraudulent purposes.
- Consummation of the marriage is impossible due to incapacity or a willful refusal to consummate, such as due to repugnance.
Will the Nullity Affect Support Entitlements?
Declaring that a marriage never existed can potentially leave parties without legal protections upon separation. This issue has been addressed, in part, by the Family Law Act (FLA), which extends the definition of a spouse to include individuals in void or voidable marriages. This provision ensures that such individuals can still claim support under the FLA, provided they entered the marriage in good faith.
Under section 1(1) of the FLA, the term “spouse” includes individuals who have entered into a marriage that is void or voidable, as long as they did so in good faith. When determining entitlement under the FLA, the threshold question is whether one or both parties entered the marriage with genuine intent.
What is the Court’s Jurisdiction to Annul a Marriage?
Couples seeking an annulment can do so under the Annulment of Marriages Act (Ontario). This Act incorporates the law of England related to the annulment of marriages into Ontario’s legal framework. It further states that the Superior Court of Justice Ontario has jurisdiction over all matters related to annulment proceedings.
Conclusion
Annulment serves as a legal declaration that a marriage was never valid, distinguishing it from divorce by addressing fundamental flaws from the outset. It provides individuals with a fresh start while ensuring legal clarity. Though the process may be complex, it upholds the principle that marriage must meet legal and ethical standards to be recognized. Understanding annulment helps individuals navigate their rights and obligations, reinforcing the importance of informed and valid marital commitments.
DISCLAIMER:
The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.