What is the Difference Between an Annulment and a Divorce?
Annulments are rare in Canada, but if you qualify for one it might leave you in a better position than a divorce would.
An annulment is a court order that says your marriage was invalid or never existed. A divorce ends a valid marriage that did exist.
An annulment can happen a lot faster than a divorce, and can be somewhat less expensive. It’s also harder to obtain, and in many cases there will be few advantages to seeking an annulment instead of simply going ahead and pursuing a divorce.
To obtain a divorce, you must have lived separate or apart for one year, or prove that either adultery or cruelty existed. To get an annulment, you must meet one or more of the requirements listed below, and prove this to the satisfaction of the court.
Requirements To Get an Annulment
To get an annulment, the marriage must be legally invalid in the province where it took place. If you got married in another country, then it would need to be legally invalid in the nation where you got married.
Reasons for an annulment could include:
- You or your spouse were already legally married or were already involved in an adult interdependent partnership or common law marriage at the time the marriage took place.
- You and your spouse discovered you are closely related by blood or adoption. Most provinces forbid the marriage of siblings or close cousins.
- The marriage was forced or coerced; you got married because you feared for your physical safety.
- You were under the influence of drugs or alcohol when you got married, and thus were unable to understand that you were getting married.
- You were under the impression you were marrying someone else.
- The person you married was unable to consummate the marriage, though it is difficult to prove this legally. You’d usually have to show that there is a medical and physiological condition which renders intercourse impracticable. In addition, there can’t be any cure or treatment for the condition.
- You or your spouse had not yet attained the age of legal majority when the wedding took place.
- The person who married you did not have the legal power to marry people.
Annulling a foreign marriage can be particularly complex, and you will almost certainly need help from a family law attorney to get it done properly.
Keep in mind that in Canada a person can become your common law spouse without a marriage ceremony, certificate, or license. Common law marriages confer all the same rights and responsibilities as regular marriages and cannot be annulled. Both parties will still have a right to 50% of the property acquired since the beginning of the romantic relationship.
Note that the intention of your partner does not matter. For example, if your partner married you just to obtain lawful permanent residency in Canada but made you think that they truly loved you that’s not grounds for an annulment. It would be something that could contribute to a divorce (and could perhaps be an immigration matter later).
How Property is Handled in an Annulment
You may be surprised to learn that spouses can still make claims against each other regarding the parenting of children, the payment of support, and the division of property and debt in most provinces.
This won’t always be the case. The couple must have entered into an invalid marriage in good faith to divide property and debts and to make a claim for spousal support. The person who seeks the support or the property must have been completely unaware that there was any problem.
When a property claim exists the date for division will be the date that you obtained the annulment rather than the date of separation.
Child support is the right of the child in Canada, and has nothing to do with the status of the parents, so if there were any children then you can expect that you’ll have to meet your obligations to them whether the marriage was annulled or not. In addition, under Canadian law the best interests of the child must be considered, and you will still have to make custody and access arrangements. As with most Canadian divorces, the courts will tend to favor a joint legal and physical custody arrangement unless there are very good reasons to handle matters in any other way. Barring that they’ll favor joint legal custody with reasonable and liberaly access by the parent who does not have physical custody.
Civil Annulments vs. Religious Annulments
A civil annulment is the only annulment that matters under the law. Your church can declare that the marriage never existed or was not recognized by your church under the laws of your religious tradition, but that will not change whether or not your marriage existed under civil law. It may only change your relationship to your religious institution.
Instead, you will need a court order to legally annul your marriage in any province in Canada.
Need Help Ending Your Marriage?
Ending a marriage is a complex legal process no matter how you go about doing it. Don’t try to do it alone.
Instead, get help from Merchant Law. We have helped thousands of Canadians navigate their divorce cases. We’ve handled annulments and common law separations as well. We can help you choose the best path forward and insure your interests are protected throughout the process.
We help clients in British Columbia, Alberta, Saskatchewan, and Manitoba. We’re known for being some of Canada’s savviest negotiators and toughest litigators. We’re also a full service law firm, which means you get the benefit of working with skilled attorneys who have a firm backing in real estate and business law. This allows us to come up with sophisticated legal solutions to your division of property and spousal support issues, and to preserve the value of your assets.
Gather your information and call your nearest Merchant Law office today to get started.