When my clients are going through a separation, I am often asked about a marriage annulment. People often conflate getting an annulment and getting a divorce, and so this article will clarify the key differences between these legal concepts.
In Ontario Family Law, a divorce is a court order that ends a legally valid marriage. Alternatively, a marriage annulment is a court order stating that a marriage was never valid from the outset and is void. Although the definitions sound similar, the distinction between them is important to understand as well as how they affect your rights.
In Canada, a divorce is vastly more common as most marriages are legally valid and have broken down. A marriage annulment is a very particular and narrow remedy in Ontario Family Law, and the circumstances necessary to obtain an annulment are very rare, making it difficult to obtain. The grounds to seek an annulment of a marriage include the following:
- One spouse was already legally married;
- One or both spouses lacked capacity to marry;
- A spouse was under the legal age to marry, and there was no proper consent obtained; and
- There was fraud, non-consummation, coercion or misrepresentation.
An interesting caveat is Grewal v. Kaur, 2011 ONSC 1812, which stated that “our law does not recognize immigration fraud as a ground for annulment of marriage.” Therefore, where both parties voluntarily enter a marriage of convenience, the marriage may still be valid and cannot be annulled, as there was no fraud or misrepresentation as between the parties.
Most divorces are granted based on marriage breakdown, usually proven by spouses living separately and apart for at least one year. Conversely, one does not have to be separated for one year before they can seek an annulment.
It is also important to understand that the effects of a divorce can be very different than the effects of a marriage annulment. In most cases, divorces provide clear rights and legal protections with respect to support and property division. A marriage annulment, however, voids one’s marriage, and if the marriage was never valid to begin with, it could limit certain claims like equalization.
The key takeaway is that a marriage annulment is not a shortcut or alternative to the divorce process. It is a complicated and distinct process that can be used in very limited circumstances, which circumstances must be proven in court.
If you have questions about whether to seek a divorce or annulment, the experienced Family Law Team at Boardwalk Law LLP is happy to help. Please contact Alexander Cannon, Associate Lawyer at Boardwalk Law, at [email protected] / 905.288.7109 to book a consultation today.
