Marriage annulment is a judicial decision to the effect that an otherwise apparently valid marriage, is void, even retroactively.

Often for the wrong reasons, a spouse will seek to obtain a marriage annulment. For example, the marriage might have been one of convenience, to qualify for student loans or for immigration purposes. Judges aren’t too fond of those (see Ali below).

Another example of a "wrong reason" is the epiphany many years into the marriage that the other partner is a schmuck; not just deserving of a divorce but of the more blameworthy annulment.

Indeed, the modern availability of a divorce means marriage annulments are no longer as common.

But marriage annulments have a wild history. Kings and queens since the Middle Ages - and before – pushed along the law of marriage annulment to free themselves from the bounds of wedlock when the mechanism of the divorce was not otherwise available from the then-giver of that privilege – the church. Nowhere in the history of law has the church’s conduct been more hypocritical than in the extension of marriage annulments to their Royal protectors.

Marriage annulment might also have a bearing as to be legitimacy of children but most jurisdictions have eliminated any distinction as between children of a marriage and illegitimate children. For example, the Civil Code of Quebec, at 381:

"The nullity of a marriage, for whatever reason, does not deprive the children of the advantages secured to them by law or by the marriage contract. The rights and duties of fathers and mothers towards their children are unaffected by the nullity of their marriage."

Marriage AnnulmentThis area of family law has the further peculiar characteristic of having run the gamut of law through history: issuing from church or canon law but, later, mostly overtaken by the common law and, more recently, further distinguished by statute law, such as local "marriage" acts. None of these transitions were complete such that in the occasional marriage annulment case, it is conceivable that a modern lawyer might still have the ability to plead ancient canon law.

And the fun does not end there.

Marriage annulment frequently include one or more international components. For example, what is the relevance of the foreign law of the place of the marriage which permits the annulment of a marriage on grounds not accepted in the jurisdiction where the application for annulment is being heard? Sometimes, the parties have prenuptial agreements which specify which law would apply to their marriage.

These types of complexities can make the legal bill considerable forcing many litigants who might otherwise have legitimate grounds for an annulment to simply choose the ‘cut and dry’ route of divorcing.

In one case (Hilcox), a person who was divorced, later sought to up the ante by then applying to annull the same marriage. The court refused to do so noting "the (previous) election by the appellant of the remedy of divorce..."

Fast forward to the 21st Century and the law has mercifully evolved ... or has it?

Lawyers still reign in this area of the law and with that, comes the inevitable semantics and plethora of distinctions.

In summary, there are two kinds of marriages which are susceptible to annulment: those which are void from the beginning and in any event (called void ab initio) and those which are voidable at the option of both or one of the parties.

Voidable marriages are valid until declared null but in most cases, the court will date their declaration of annulment to the date of the marriage so that in effect, the marriage is void from the beginning.

Another curious distinction: an application for a declaration that a marriage is void ab initio may, in theory, be obtained even after the death of one of the spouses whereas the option to annul a voidable marriage is lost on the death of either spouse.

Further, in a wife’s application to void a marriage alleged to be void ab initio, the applicant would use maiden name. In a similar application but to annul a marriage alleged to be just voidable, the wife would use her married name.

Here are some examples of a marriage void ab initio and for which an annulment ought not to be difficult to obtain:

►The parties were relatives to an illegal degree. The marriage legislation of most jurisdictions prohibits marriage between persons of a certain degree of blood relation such as father and daughter, brother and sister, or first cousins.

In Canada, the point is covered by the federal Marriage (Prohibited Degrees) Act which states at section 2(2):

"No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption." Marriage legislation typically sets out a limited number but nonetheless mandatory formal requirements for a marriage, not the least of which is that the marrying persons must be of a certain age or if younger, have the authority from parents or the court. If these requirements are not met, the marriage might be void ab initio. >One of the spouses was actually married to another at the time of the marriage (bigamy).Marriages which are voidable are:

►If one of the marrying persons are impotent or otherwise unable to have sex, for which the law has a lovely word: ‘consummate’. The inability to consummate the marriage does not make the marriage void ab initio; but it is voidable at the option of one of the parties.

Some persons find out upon marriage that they are unable to have sex for a variety of very sad reasons; sometimes physical and sometimes emotional such as the trauma of a sexual assault in their past. They hope that a marriage will correct the difficulty but sometimes, very sadly, it does not.

At the same time, while an inability to consummate will support an application for annulment, a simply refusal will not. In real life, the distinction is not always clear. A person may have an unanticipated repugnance towards the act of consummation which, in the House of Lords (G v G), and as subsequently adopted by the Supreme Court of Canada (Heil v Heil), results in a:

"... paralysis of the will which was consistent only with incapacity ... invincible repugnance: invincible in the full sense of an unconquerable, uncontrollable nervous condition which is physical and which creates nullity."

Also, a person may rely on his or her own inability to consummate support an application to annul a marriage.

Homosexual or same-sex marriages will likely bring to the law books a whole new sets of principles depending on how the court’s ultimately define "consummation" in the context of same sex marriages.

► Another odd type of marriage which is voidable is where a spouse is mistaken as to the other person’s identity, or they did not realize that they were going through with a marriage ceremony. This may strike a reader as peculiar but it has its origins in ancient times particularly when two persons were intentionally separated from the other until the actual moment of marriage.

There is a third reason for marriage annulment which is a bit of a hybrid; lack of valid consent. In some cases, marriages infected with this reason are void ab initio while in other cases, the marriage is voidable, generally at the sole option of the spouse adversely affected by the alleged issue.

An absence of valid consent means that the consent of one or both of the parties to the marriage, at the time it was contracted, was allegedly invalid for a variety of reasons such as duress, mental incompetency, drunkenness or drug-induced stupor. Each of these potential grounds for marriage annulment comes with a full set of highly developed legal rules which raises the bar for annulment in relation to each. Further, each Canadian province may have a statute or a rule of law as established in the case that specifies the threshold of a particular ground for annulment.

Always lurking in the background of any application for a voidable marriage is a defence to the application that the applicant became aware of the issue in regards to the marriage but then did not act to seek annulment on a timely basis. This is known as laches, estoppel or inordinate delay and if it is a proven fact, it might defeat the application for annulment.

For example, if an applicant for marriage annulment alleges mistake but it can be proven that she stayed in the marriage for years after she discovered the mistake, including having ongoing "consummation" with the defendant, the application for annulment would not likely be granted.

Many marriage annulment cases contain overlapping issues such as in Ali v Ahmud, where the Ontario judge refused to annul the marriage of the parties who were married in Iraq in 1999.

The wife presented to the court that a marriage in Iraq involves two steps: the private exchange of vows followed by a public celebration and that since the second step never occurred, the marriage was void.

The husband agreed with the application for annulment but for a different reason. He told the court that his wife only married him to facilitate her immigration to Canada and that further, they had never had sex and had lived together for only two weeks.

Justice Grant Campbell refused to annul the marriage because the wife’s purpose of the marriage (to move to Canada) was known to the husband at the time of the marriage:

"Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made. Only an operative mistake can affect the validity of a marriage."

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