Pamela Anderson and Rick Salomon: Annulment?

TMZ has reported that Pamela Anderson filed for a divorce last week, citing irreconcilable differences. However, TMZ has reported that Rick has filed his own documents claiming that the marriage should be annulled.

In Ontario, an Order to annul a marriage can only be made where the marriage is held to be legally invalid. That is, the Court must be satisfied that one or more of the requisite elements of a valid marriage is not present. Annulment differs significantly from that of divorce, as a divorce can only be granted where the parties can provide that a valid marriage has existed.

In Ontario, the legislative authority with respect to the institution of marriage is shared by the Federal and provincial legislatures in accordance with the Constitution. Section 91(26) of the Constitution Act provides the federal Parliament with the authority to legislate with respect to "marriage and divorce". As such, only the federal Parliament can enact legislation about the "inherent capacity" to marry. By way of contrast, section 92(12) provides that the provincial legislature may legislate with respect to "the solemnization of marriage in the province", which has been interpreted to include the "formalities" of marriage.

For a marriage to be valid, the parties must have the capacity to marry. That is, the parties must:

  1. Be two persons;
  2. Have the capacity to consent to the marriage;
  3. Have the capacity to consummate the marriage;
  4. Not be within the prohibited degrees of consanguinity and affinity;
  5. Not be a partner to an existing valid marriage; and
  6. Have attained the age required for a valid marriage.

Further, for a marriage to be valid, as noted above, the marriage must adhere to the formalities as provided for in Ontario's Marriage Act.

In the event that the marriage is valid and satisfies all of the above "requirements", the parties of the marriage ought to seek a divorce as opposed to an annulment. Although not privy to the grounds to which Rick is requesting an annulment, it seems, if the parties were resident in Ontario, a Court would be more likely to grant a divorce than an annulment.

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