What is an Annulment and How does it Differ from a Divorce?
An annulment is a legal declaration that a marriage was never legally valid – it deems the marriage null and void as if it never happened. A divorce, on the other hand, ends a legally valid marriage. Essentially, an annulment is as if the marriage never legally existed.
Grounds for a divorce generally requires proof of breakdown of the marriage, which is typically evidenced by living apart for at least one year. Grounds for annulment relate to deficiencies at the time of the marriage.
What are the Legal Grounds for an Annulment?
In BC, the legal grounds for obtaining an annulment revolve around factors that make the marriage void from the outset voidable upon actions by one of the parties. The primary legal grounds include:
- Lack of Capacity to Marry: reasons for lack of capacity include being below the legal age for marriage (19 years old) or already being married to another person (bigamy);
- Lack of Valid Consent: consent must be freely given for a marriage to be valid. Reasons for lack of valid consent include if consent was obtained through duress (force or threats), fraud or mistake (for instance, mistake about a person’s identity);
- Physical Incapacity to Consummate the Marriage: if one party is physically incapable of consummating the marriage, and this incapacity is incurable and was unknown to the other party at the time of marriage. This inability must be of a permanent nature and cannot be temporary or treatable. Simple failure to consummate a marriage when both people were physically capable is not a ground for annulment – there must be a physical incapacity.
It is important to understand that the specific application of these factors depend on individual circumstances and how they may apply to your particular situation.
How does the Process of Obtaining an Annulment Differ from a Divorce?
The process for obtaining an annulment in BC is as follows:
- Petition for Annulment:the process begins with filing a petition to the Supreme Court of British Columbia, citing specific legal grounds for the annulment.
- Evidence and Hearing:unlike divorce proceedings, which often focus on the duration of separation or instances of misconduct, annulment proceedings may require more detailed evidence about the state of the marriage at its inception.
- Court Decision: the court examines the evidence. If successful, the court declares the marriage annulled.
The process for obtaining a divorce is as follows:
- Application for Divorce:initiates with an application to the court, typically focusing on proving the ground of one year of separation, adultery, or cruelty.
- Mandatory Separation Period:for the most common ground (one year of separation), the process inherently includes a waiting period that annulment does not require.
- Divorce Order:following the resolution of any contested issues and the waiting period, the court grants a divorce order, legally dissolving the marriage.
What are the Implications for Division of Property and Debts in an Annulment Compared to a Divorce?
In British Columbia, the legal distinctions between an annulment and a divorce significantly affect the division of property and debts between former spouses. These differences are rooted in the fundamental nature of each proceeding: an annulment treats the marriage as if it never legally existed, whereas a divorce acknowledges the legal existence of the marriage but ends it.
Annulment Implications for Property and Debts:
- Legal Status of Marriage: legally, an obtaining an annulment is as if the marriage never occurred. This distinction can complicate the division of property and debts because the frameworks developed for marital property division under BC’s Family Law Act do not automatically apply.
- Division of Assets and Liabilities: parties may not be entitled to the equal division of matrimonial property or debts as they might in a divorce scenario. Instead, the division could revert to general principles of property and contract law, aiming to return the parties to their pre-marriage status as much as possible. This could involve, for example, determining ownership based on whose name is on the title or contract.
- Spousal Support and Agreements: The entitlement to spousal support under an annulment is not as clear-cut as in a divorce since the legal recognition of the marriage is nullified. Additionally, prenuptial or cohabitation agreements might not be enforceable in the way they were intended if the marriage is declared invalid.
Divorce Implications for Property and Debts
- Equal Division of Family Property and Debt: under BC’s Family Law Act, divorce leads to an equal division of “family property” and “family debt” accumulated during the marriage, unless equal division is deemed significantly unfair.
- Exclusions and Exceptions: certain assets may be excluded from division, such as property acquired before the marriage, inheritances received by one spouse, and gifts to one spouse from a third party. However, the increase in value of these assets during the marriage may be subject to division.
- Enforceability of Agreements: marriage agreements (commonly known as prenups) and cohabitation agreements are generally enforceable in divorce proceedings, subject to legal review for fairness and adequate disclosure.
If you have questions about this, or any other family law matter, please contact a member of our Family Law Practice Group for a consultation
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Fanda Wu Partner | Family Law Vancouver |
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Poonam Pabla Lawyer | Family Law Vancouver |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.