What Is The Difference Between Divorces and Annulments
In Ontario, you can lawfully terminate a marriage through one of two ways— by way of divorce or an annulment. The main and most important difference between the two is that a divorce terminates a valid marriage, whereby an annulment terminates a marriage that was classified as void or voidable.
To obtain a divorce, the parties must have had a valid marriage. This means that at the time the marriage occurred, all the circumstances of the ceremony must have complied with federal and provincial laws. Further, a divorce will only be granted if a party can prove that there has been a breakdown of the marriage.
A party can argue that their marriage has broken down if:
1) they have lived separate and apart from the other spouse for at least one year;
2) one spouse has committed adultery; and
3) one of the spouses has been cruel towards the other.
In contrast, annulments deem a marriage invalid, which essentially renders the marriage null and void, like it never happened. The remainder of this blog will outline the ways in which you can get an annulment in Ontario, and the law governing the same.
Is it difficult to get an annulment?
Typically, yes. In Ontario, annulments are not common as they require very specific criteria that must be adhered to before a marriage can be annulled. As such, most spouses tend to terminate their marriage by way of divorce.
What qualifies for an annulment? How do you get a marriage annulled? What are the common grounds for annulment?
An annulment can be obtained if you argued that your marriage lacked formal validity. This means that there would have to be a legal defect in your marriage ceremony itself. Further, an annulment can also be obtained if you argued that your marriage lacked essential validity, meaning that either one or both spouses lacked the capacity to get married. Below are the ways in which a spouse can show that their marriage was invalid:
- The marriage was not consummated
This is a very common ground for spouses to rely on when seeking an annulment. Here, case law states that simply refusing to consummate the marriage is not sufficient. There needs to be some incapacity or disability, which bars a spouse from being able to consummate the marriage Boudreau v. Torrant, 2020 ABQB).
- One spouse is already married to another person
In Canada, the law forbids you from getting married to one person, if you are already married to another. If this is the case, and either you or your spouse is married to another, you are eligible for an annulment.
- The spouses are closely related to each other
You cannot get married to someone that is closely related to you, by either adoption or blood.
- One of the spouses is underage and did not seek parental consent
In Ontario, you must be at least 16-years-old to get married, so long as you have consent from your parent.
- One spouse could not adequately consent to the marriage
If the marriage was entered into under duress, fraud, or fear, this essentially impacts one’s ability to adequately consent to marriage. It must be noted that marriages of convenience (i.e., for immigration purposes), cannot be annulled solely on that reasoning.
What is the time frame for an annulment?
Although there is no time limitation on when spouses can obtain an annulment, annulments are usually used to end marriages that lasted for a very short period of time. For more information on time frames for annulments, please contact our office.
How long after marriage can you get an annulment?
Annulments typically come about fairly short after marriages, however, there are exceptions. Annulments can be annulled, for example, after 10 years, but only if they lacked the original validity.
Speak to a lawyer at Nussbaum Family Law about the cost of your annulment. We will be able to help you determine whether an annulment is possible, based on your situation, or whether you should obtain a divorce instead.