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Annulment of the Marriage
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.
The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta.
What is an Annulment?
This topic discusses the annulment of a marriage. If the Court finds that you have strong grounds for an annulment, it will order a Nullity Decree to state that your marriage did not exist or was invalid. A divorce is different than an annulment because it terminates an existing and valid marriage. An annulment treats the marriage as if it never even took place. The Court can make such a decision by declaring the marriage void or voidable, depending on the ground(s) that exists.
A marriage that is declared void means that there is no legal marriage. This will often be declared when a condition for marriage was violated by one of the parties. For example, if you were legally married to someone else and you married another person without divorcing the first spouse, your second marriage would be void.
A marriage is declared voidable when you and your partner have the option to terminate the marriage because of a condition or promise violated by one of the spouse’s. It accepts that the spouse’s have entered into a legal marriage but because of an obstacle or violation of a trust or promise, the marriage is open to be voidable by one of the spouse’s. For example, if your partner is physically unable (not unwilling) to have sexual intercourse on a permanent basis and misled you of this fact before the marriage took place, you have the option to terminate the marriage. Knowing this information would have been an important factor in entering a marriage before it took place and would be a valid ground for an annulment.
Obtaining an Annulment
In order to get an annulment by the Court, you must prove to the court that a ground exists. The Court hesitates to terminate a marriage if you and your partner have lived together as husband and wife. If there are children of the marriage, the Courts are even more hesitant to grant an annulment. For these reasons, the only way to convince the Courts is by determining if you have a strong ground for annulment. Some of the grounds are identified below. You should seek the advice of a lawyer in such matters.
Grounds for an Annulment
You should consult with a lawyer before asking the Court to annul your marriage. Establishing the grounds for a void and voidable marriage is difficult and requires legal expertise and guidance. Grounds for an annulment may include the following:
- You or your partner are not old enough to marry (e.g. spouse(s) were under the age of 18 and did not receive parent’s consent and consummate the marriage afterwards);
- You and your partner are too closely related;
- You or your partner are already legally married to another person;
- The marriage was for immigration purposes;
- The mandatory formalities for your marriage to legally take place were not followed (e.g. you did not have a civil or religious ceremony);
- You or your partner did not consent to the marriage because of a mental incapacity (e.g. under the influence of drugs or alcohol) or because consent was not voluntarily given (e.g. a person was forced or threatened into the marriage);
- You or your partner cannot have sexual intercourse due to a permanent disability which may be either physical or psychological (Note that if the disability is curable and a party refuses to undertake a cure, you may still be able to use this ground). It is important to note that a person’s inability to have children is not a ground for a nullity decree.
Waiver
If you believe that you have a ground(s) for an annulment, but you continue to live with your spouse, the Court may find that you have agreed to continue the marriage and will waive or disregard your annulment request.
Children
If you have children, an annulment does not make the children of the marriage illegitimate. If the marriage is voidable, then the children are the rightful and lawful (‘legitimate’) children of the marriage 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.
Financial Support, Custody Orders, and Property of the Marriage
Where the Court grants an annulment, it may also order 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 amongst spouses. However, a person who knew or had reason to believe that the marriage would be void based on a ground at the time of the marriage, may not have any rights to the marital property.
Religious Requirements
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 it 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 later remarry in that faith. However, it is important to remember that a religious annulment is different from a legal annulment. For this reason, a religious annulment will not necessarily be recognized or accepted by a court.