Recently, I’ve had consultations with some people and worked with some clients who were married for one year or less. Typically, the manner in which I would assist clients in coming to a resolution of their matter does not change depending on the length of the marriage. However, today I’m here to speak with you about couples who choose to separate within the shortest possible time frames, sometimes weeks or even just days.
While you might think that short marriages of this nature only exist in the celebrity world, they are in fact quite common. Unfortunately, they sometimes go without resolution for longer than the relationship itself. Often, the first question a client who is leaving a marriage after only days or weeks will ask is:
“Can I get an annulment?”
Annulments in Ontario are governed by the Annulment of Marriages Act (or the AMA), whereas divorce pre-supposes a valid marriage. An annulment can only occur if a party is able to demonstrate that either a marriage lacks formal or essential validity. Nullity results from a defect of the original marriage which prevents it from having come into existence.
The formal validity of marriage is under provincial jurisdiction. For a marriage to lack formal validity, there would have to be defect in following the provincial rules for the formality of a ceremony.
The essential validity of marriage is under federal jurisdiction and concerns the capacity of parties to marry. Traditionally, there were six “requirements” or essential factors that allowed for a marriage to be valid. There are now only five, as to be married two people no longer have to be of the opposite sex. The remaining five essential factors include: the parties’ ability to consummate the marriage; the requirement that the marriage not be outside the prohibited degrees of consanguinity and affinity; that there be no prior existing marriage; that both parties have capacity to consent to the marriage; and finally, that both parties be of age. As one might expect, proving that a marriage lacks essential validity is very difficult to do, and as a result, not many marriages are granted annulments in Ontario.
Sometimes clients or potential clients ask about religious-based separations. Obtaining a religious annulment is separate from obtaining a civil annulment and therefore couples may still move forward with a religious annulment even in the absence of a civil annulment. If you are interested in this process, please speak with your religious official for further information.
So, what does this all mean for couples who have separated after being married for days, weeks, or months? It means that if they are unable to meet one of the grounds of annulment they will have to move forward with obtaining a formal divorce by demonstrating one of the grounds of divorce: either living separate and apart for one year, adultery, or cruelty. Many couples will fall within the first ground for divorce and once they have lived separate and apart for one year, they will be in a position to apply to the court for a Divorce (which will usually be uncontested in marriages of less than one year). In fact, living separate and apart is the most common way of obtaining a divorce in Canada no matter what the length of marriage is.
For more information on the grounds for divorce or annulment, please visit our website. To book an initial consultation to discuss your matter with one of our lawyers, please call: 905-581-7222. Thanks for watching.