Annulment of Marriage

For civil purposes, marriage is a lawful union of two persons to the exclusion of all others. Under certain circumstances, a marriage, which would otherwise be treated as a valid lawful marriage, can be annulled by a court of competent jurisdiction. Annulment allows some spouses to end a marriage without a divorce. An annulment is a court judgment or declaration that a marriage is void and establishes that marriage never existed. Divorce dissolves a marriage from the date the divorce judgment becomes effective onward. Annulment affects the former validity of the marriage and operates as a declaration that two spouses were never legally married.

Support and Division of Property under The Family Law Act

Where a marriage is annulled, there may still be entitlement and obligations for support and division of property under the Family Law Act.

Grounds For Annulment

The grounds for an annulment are very specific. Very few marriages are annulled in Ontario. A marriage can be annulled for a number of reasons, which usually relate to:

• A legal defect in the marriage ceremony; or
• Capacity issues dealing with one of the spouses.

Capacity Issues

In order to enter into a valid marriage, one must have the capacity to enter into a valid contract. Some capacity considerations constituting potential grounds for annulment include the marriage of persons who are unable, unwilling or fraudulently induced to enter into marriage. For example:

• One or both of the parties were intoxicated during the ceremony to the point where their consent could not have been given.
• The marriage was entered into under duress, fear, or fraud. In these situations, one party did not enter into the contract of marriage of their own free will.
• One spouse was already married to someone else at the time of the marriage ceremony. This does not apply in cases of polygamous marriages in jurisdictions where such unions are lawful.
• One spouse was under the age of 18 at the time of the marriage ceremony and married without parental permission.
• One spouse lacked the mental capacity to understand the basic meaning of marriage.

Non-Consummation

The most common ground for annulment is non-consummation. Consummation refers to making the marriage complete by sexual intercourse. Incapacity to consummate the marriage by complete sexual intercourse may, in some circumstances be grounds for annulment. A single act of consummation eliminates this possible ground for annulment. On application, the inability of a respondent to consummate the marriage is ground for annulment of the marriage. Impotence may arise from a physical disorder or a mental condition that creates in the mind of a spouse an aversion, an invincible repugnance to the physical act of consummation, resulting in a paralysis of the will. In either case, the impediment to consummation must be such as to render complete intercourse impracticable.

The applicant must have reasonable expectation of sex at the time of marriage. This means that if the applicant knows at the time of marriage that the relationship will be platonic or that the respondent could not have sex, the ground of non-consummation will not apply. Lack of opportunity to consummate the relationship is not grounds for annulment.

A refusal or failure to consummate is not sufficient grounds for annulment. Non-consummation and refusal to consummate may serve as evidence from which an inference of incapacity can reasonably be drawn.

Marriages Of Convenience

The motive of the parties to marry is not considered by the court to be a ground for annulment. As such, marriages of convenience, such as for immigration purposes, are valid marriages and will not be annulled on that ground alone.

Limitation

Generally, there is no limitation on annulments but usually marriages of short duration are annulled.

Religious Annulments

Religious annulments are not recognized legally and are valid only to the extent that they may be recognized by the Church. Divorce or declaration of annulment by a court of competent jurisdiction is the proper way to legally end a marriage in Canada.

Please visit our Annulment of Marriage Frequently Asked Questions section for further information or contact us.