An annulment results from some defect or disability which exists at the time of the marriage ceremony and prevents a marriage from coming into existence. You must apply to the court for an annulment and show that there was a defect in either the formal or essential validity of the marriage.
Formal Validity of the Marriage
The formal validity refers to a legal defect in the marriage ceremony. Individuals wanting to marry must refer to and comply with the provincial rules regarding formalities of ceremony. Some defects that could invalidate a marriage are:
- Defective publication of banns.
- The person who solemnized the marriage is not authorized to do so.
- An irregularity in issuing the license.
Essential Validity of the Marriage
A defect in the essential validity of the marriage refers to an issue related to the capacity of one of the spouses. The defect complained of may take any of the following forms:
- inability to consummate the marriage – renders the marriage voidable because unless and until one of the parties applies for an annulment there is a valid and subsisting marriage
- within the prohibited degrees of consanguinity of affinity
- see: s.2 and s.4 of the Marriages (Prohibited Degrees) Act, R.S.C. 1990, c. 46
- if 2 persons are related lineally, or as brother and sister or half-brother and half-sister, including adoption then they cannot marry each other
- prior existing marriage
- lack of consent due to:
- mental incapacity duress
- limited purpose marriage