What is an Annulment?

An annulment is a court order that states that your marriage was never valid. Annulments in Ontario are governed by the Annulment of Marriages Act (the AMA). In order to get an annulment, you must apply to the court 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 of the marriage is under provincial jurisdiction and refers to a defect in the marriage ceremony. Individuals wanting to marry must refer to and comply with the provincial rules regarding formalities of ceremony. Examples of defects that can invalidate a marriage are:

• Defective publication of banns.
• An irregularity in issuing the license.
• The person who solemnized the marriage is not authorized to do so.

For more information on the issue of the formal validity of a marriage in the context of an annulment, see our blog on the case of Matthews v. Mutiso here.

Essential Validity of the Marriage

The essential validity of the marriage is under federal jurisdiction and refers to an issue related to the capacity of one of the spouses. The defect complained of may take the following forms:

• Inability to consummate the marriage: this 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 or affinity: if two people are related lineally, or as brother and sister or half-siblings, including adoption, then they cannot marry each other.
  • See S.2 and S.4 of the Marriages (Prohibited Degrees) Act, R.S.C. 1990, c. 46
• Prior existing marriage.
• Age.
• Lack of consent due to mental incapacity, duress, limited purpose marriage, fraud, or mistake.

What is the difference between a divorce and an annulment?

The result of a divorce and an annulment is essentially the same – the parties are free to remarry or enter a domestic partnership with a new partner. However, while a divorce terminates a legally valid marriage, an annulment treats the marriages as if it never existed. If you are unable to prove a defect in either the formal or essential validity of a marriage, you will have to proceed by obtaining a divorce. Clients who were married for a short period of time often ask if they can get an annulment instead of a divorce because they were only married for a brief period; for more information on short-term marriages, see our video on short-term marriages here.