The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses the annulment of a marriage. Some people want an annulment for religious reasons. If you belong to a faith that disapproves of divorce, you may want to speak to the leader of your religious group before consulting a lawyer. Ask your religious leader if is necessary to obtain an annulment of the marriage through the legal system. Some religions may allow you to obtain a civil divorce and a church annulment which means you may then remarry in that faith.
An annulment by the Court may be difficult to get without strong grounds. The Court is often reluctant to dissolve a marriage if you and your partner have lived together as husband and wife. If there are children of the marriage who are still alive, then the Courts are particularly reluctant to grant an annulment. You should talk to a lawyer to see if you have the necessary grounds. If the Court finds that you have strong grounds for an annulment, an Order called a Nullity Decree will be issued to declare your marriage as void or voidable.
A marriage is declared void when there was no legal marriage. For example, if you were legally married to someone else and you married another person without a divorce, your second marriage would be void. A marriage is declared voidable when you and your partner enter into a legal marriage, but the marriage is voidable because an obstacle to the marriage is discovered after the marriage. For example, if you or your partner is unable (not unwilling) to have sexual intercourse on a permanent basis, and did not tell the other partner before the marriage took place. This information would have been an obstacle to marriage if known before the marriage took place.
You should consult with a lawyer before asking the Court to annul your marriage. The grounds for a void marriage and the grounds for a voidable marriage are complex. Grounds may include the following:
- You or your partner is not old enough to marry. You must be over the age of 16 years;
- You and your partner are too closely related;
- You or your partner is already legally married;
- There were no essential formalities for your marriage to legally take place. For example, there must be two witnesses present at your marriage ceremony. You may apply to the Court to disregard the irregularities in your marriage ceremony, and have your marriage declared to be legal.
- You or your partner did not consent to the marriage. For example, if you or your partner were mentally incapacitated, or very drunk, at the time of the marriage ceremony, you may not have been able to consent to the marriage. You and your partner must be able to understand the nature of the marriage, and the rights and duties that a married person undertakes upon marriage.
- You or your partner cannot have sexual intercourse. The disability may be either physical or psychological, but it must be permanent and irreversible. If the impotency is curable and the party refuses to undertake a cure then it is considered to be the same as incurable impotency. Sterility, which is the inability to have children, is not a ground for a nullity decree.
If you believe that you have the grounds for an annulment, but you continue to live together, the Court may find that you have agreed to continue the marriage and will disregard the grounds for an annulment.
If you have children, an annulment does not make the children of the marriage illegitimate. Provincial laws have been passed which prevent this in most cases. If the marriage is voidable, then the children are legitimate even after the Nullity Decree has been granted. If the marriage is declared void and did not exist at any time, the children are legitimate if the marriage was registered in accordance with the law and at least one of the parties to the marriage believed it was valid marriage.
Where the Court grants an annulment, it may also make financial support and custody Orders for the children of a marriage. The Court may also order financial support for the spouse and an Order for the distribution of property. However, a person who knew or had reason to believe at the time of the marriage that the marriage was void may not have any rights to the property acquired during the time of the marriage.