People usually raise annulment after a very short marriage or a serious discovery. “We were only married for three weeks.” “He had a wife back home.” “She only married me for the immigration papers.” “My family pressured me into it.” There is often a strong wish to have the marriage erased rather than ended, and sometimes a religious or family reason for wanting that outcome. An annulment can feel like the clean answer.
It is rarely as simple as that. In Ontario, an annulment is a court declaration that a marriage was never legally valid, or that it was defective from the start and can be set aside. The grounds are narrow. Regret does not qualify, and neither does the fact that a marriage was brief. Most people who ask about one end up getting a divorce, which is generally the simpler route. There are situations, though, in which an annulment is exactly the right tool.
What follows is general information, not legal advice. Annulment is a fact-heavy area based on a mix of statute and older case law, so please speak to a lawyer about your own marriage before deciding on a course of action.
The basic difference
A divorce ends a valid marriage from the date it takes effect. A declaration of nullity says that the marriage had a fundamental flaw when it was formed.
The Divorce Act requires a breakdown of the marriage, usually shown by one year of separation, though adultery or cruelty are also grounds. It also requires that one spouse has been habitually resident in the province for at least one year. An annulment is not based on marriage breakdown, has no one-year separation requirement, and is not available simply because a couple wants a faster result. The court needs evidence of a specific ground, and you carry the burden of proving it.
Religious annulments are separate. A decree from a church or a religious tribunal may matter within your faith, but it has no legal effect on your civil marital status in Ontario. A religious body’s decision alone does not free you to remarry under Ontario law, and a civil annulment alone may not satisfy your faith. Many people need to deal with both.
Void marriages
A void marriage is treated in law as never having existed, though obtaining a court declaration is still wise for proof and for dealing with property and status. The main grounds include:
- An existing marriage. Under section 2.3 of the Civil Marriage Act, a person who is married cannot contract a new marriage until every previous marriage has been dissolved by death or divorce, or declared null. A bigamous marriage is void, even if the second spouse knew nothing.
- Being too closely related. The Marriage (Prohibited Degrees) Act bars marriage between persons related lineally by blood or adoption, and between siblings by blood, half-blood or adoption. Such a marriage is void.
- Being under 16. Section 2.2 of the Civil Marriage Act sets a minimum age of 16 for marriage. In Ontario, a person between 16 and 18 also needs parental consent to obtain a licence or the publication of banns, though the absence of that consent may be treated differently from being under the minimum age.
- No true consent. Section 2.1 of the Civil Marriage Act requires the free and enlightened consent of two persons to be the spouse of each other. Serious duress or a person’s lack of capacity to understand the marriage may undermine it. Courts have sometimes described these cases as void and at other times as voidable, depending on the circumstances.
- Fundamental defects in form. Serious failures in the way the marriage was solemnized may cause trouble, though Ontario’s Marriage Act contains a provision that can rescue a marriage solemnized in good faith despite irregularities if the spouses then lived together as a married couple. Not every missed paperwork step is fatal.
Voidable marriages
A voidable marriage is valid until a court sets it aside. The classic ground is non-consummation due to incapacity. A person seeking this needs to show that sexual intercourse could not occur because of a physical or psychological inability that existed at the time of the marriage. A mere refusal, a loss of interest, or lack of opportunity does not generally satisfy this test, and it is not the same thing as a couple who stopped having sex later.
Voidable marriages may be affected by the spouses’ conduct. A person who knew about a problem and carried on as a spouse for a long time may have trouble seeking relief, and so delay is a real risk here, even though there is no fixed deadline.
Fraud, duress and the immigration question
Fraud is often raised, and courts have often set the bar high. The fraud generally must go to the marriage itself, such as who the person is or the nature of the ceremony. Lies about money, a job, a past, a pregnancy or feelings are hurtful, but they often do not make a marriage invalid. Marrying someone who wanted status in Canada raises a more mixed question. Some people in this situation have sought annulments; courts have not always agreed, and the result depends heavily on the facts. There are immigration aspects as well, since a sponsor’s undertaking is a commitment to the government that does not simply vanish. Speak to both family and immigration counsel before taking any steps, as your statements in one forum may be used in another.
Duress is different. Forced marriage is a real issue, and fear of family, threats to safety, or heavy pressure that overcomes a person’s will can defeat consent. The Criminal Code also addresses forced marriage. A person in this situation should think first about their safety and may wish to speak to a lawyer in confidence, away from family. If there is any immediate danger, contact Peel Regional Police or call 911.
How the case proceeds
An annulment is obtained from the Superior Court of Justice. In Brampton, that court sits at 7755 Hurontario St. The application is typically made under the Family Law Rules, and the applicant must serve the other spouse. Evidence may include a marriage certificate, an affidavit explaining the facts, documents on a prior marriage, medical evidence in a non-consummation case, and sometimes oral testimony. If the other spouse consents or does not respond, the court still needs to be satisfied of the ground: spouses cannot make a marriage invalid just by agreeing that it is.
Foreign annulments may be recognized as well; the rules are similar to those that apply to foreign divorces. The Marriage Act treats dissolved and annulled marriages together for licence purposes.
Property and support after an annulment
A common misunderstanding is that an annulment wipes out all financial rights, as if the relationship never happened. Ontario law does not go that far.
The Family Law Act defines “spouse” to include two persons who have entered into a marriage that is voidable or void, in good faith on the part of the person relying on that clause to assert a right. So a person who honestly believed that the marriage was valid may still claim equalization of net family property and spousal support. The limitation period in section 7(3) refers directly to a judgment of nullity: an equalization claim must be started within the earliest of two years after the marriage is terminated by divorce or judgment of nullity, six years after separation, or six months after the first spouse’s death. The valuation date can be the date the marriage is declared a nullity, if that is the earliest of the dates listed.
A person who knew the marriage was invalid, for instance one who married while knowing they were still married to someone else, is in a much weaker position to claim these rights as a spouse. That person may still have claims based on unjust enrichment, or may qualify for support as an unmarried partner under section 29 if they cohabited long enough. Corollary relief under the Divorce Act, which is only available in a divorce proceeding, is not available following a nullity. That is why the provincial statute generally does the work.
A contract also does not automatically fall away. A marriage contract may specifically address annulment, since section 52 of the Family Law Act refers to rights on separation, annulment or dissolution of the marriage. Check any contract you have.
Children are not affected
A child’s status does not depend on the validity of a parent’s marriage. Under the Children’s Law Reform Act, parentage does not turn on whether the parents were validly married, and section 7(2) even includes a presumption of parentage where a marriage was ended by a judgment of nullity within 300 days before the child’s birth. Parenting arrangements and child support are determined in the usual way, based on the child’s best interests and the guidelines. Our custody and parenting page explains what decision-making and parenting time involve.
Choosing between them
In a good number of cases, the choice is practical:
- If there is a clear ground such as bigamy, an annulment or declaration may give you certainty, and you may not need to wait a year.
- If you have been separated for close to a year, or will be soon, an uncontested divorce may be faster and cheaper than proving a contested ground, particularly one requiring medical or intimate evidence.
- If a religious or personal concern is what is driving the request, you may need to pursue a religious annulment in any event and can also obtain a civil divorce, which your faith may or may not accept.
- If remarriage or an immigration file depends on the answer, ask for advice on how each option will be treated on the relevant form.
- If a property or support claim is important, check the timeline first, since a nullity may start a two-year clock.
If you have been married abroad, or there is a chance that a prior foreign divorce was not recognized here, that question should be looked at first, as it might itself be what makes the later marriage void.
A sensible first step
Before a consultation, write a brief timeline with the dates of the marriage and separation, the facts that make you question the marriage’s validity, and any documents you have. If you are in doubt, a short talk can help you decide whether to pursue an annulment or a divorce. Our family law page explains how we can help with either.
Whatever brought you to this question, you can usually untangle a marriage with accurate information and careful preparation. The legal route is only one part of what you will be dealing with, and getting that part right will let you turn your attention to everything else.