Can I get an Annulment?
Millad Ossudallah, Vancouver Family Lawyer
I would prefer an annulment instead of a divorce, what are the steps?
By definition, an annulment is a circumstance where there is a nullity of the marriage. A declaration of nullity may be obtained in two situations:
- Void marriages, which are invalid from the start or in Latin, void ab initio; and
- Voidable marriages, which are valid until a court of competent jurisdiction grants a declaration of nullity
A marriage is null and void ab initio when:
- either of the parties was, at the time of the marriage, still married to another person;
- one of the parties did not consent to the marriage;
- the parties are related within the bounds of consanguinity; or
- the formal requirements imposed by provincial statute (the Marriage Act, R.S.B.C. 1996, c. 282) are not fulfilled.
In Canada, a marriage may be voidable when either party is physically unable to consummate the marriage, the test being “an invincible repugnance or invincible aversion” as opposed to an unwillingness to consummate. Also applicable is when one of the parties was underage or entered the marriage as a result of fraud, mistake, or duress.
A recent decision in the BC Supreme Court – Grewal v Bal, 2020 BCSC 1588 – demonstrated the delicacy and complexity associated with annulment applications. The judge, declining the marriage annulment of a couple separated on their wedding day, advised there was no evidence that would support the conclusions that the marriage was void. Despite the parties’ indication that there was no consummation and that this was the basis for an annulment of the marriage, the court ruled that there was no evidence that either party was physically or psychologically incapable of sexual relations with the other.
The court stated the following:
[13] In this case, the materials filed do not support an annulment. There is no evidence that would support the conclusion that the marriage is void, that is, void ab initio. There is no evidence to suggest that the parties were not capable of being married to each other, or that their consent to the marriage was invalid, or that the marriage ceremony itself did not comply with the formal requirements pursuant to the Marriage Act, R.S.B.C. 1996, c. 282. In fact, the evidence they have adduced shows exactly the opposite.
[14] There is a presumption of valid marriage with consent if the marriage ceremony followed the requisite formalities. The burden of proof is on the person seeking the annulment to show otherwise: R.H. v. R.T., 2011 BCSC 678 at paras. 72 and 78; Ross-Scott v. Potvin, 2014 BCSC 435 at para. 50. The burden of proof in civil matters is on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, at para. 40; Nagy v. BCAA Insurance Corporation, 2020 BCCA 270, at paras. 41-42.
[15] Nor does the evidence indicate that the marriage is voidable. There seems to be a common misconception that a marriage is voidable simply if it is not consummated, in the sense that following the marriage, the parties engaged in sexual relations. The law is not that simple. In order to obtain annulment of the marriage, on the grounds of failure to consummate, it is not sufficient for the parties to simply establish that they have not had sexual intercourse since the marriage: H.L.C. v. M.A.L, 2003 BCSC 1461, at para. 13 [H.L.C.]; C.M.D. v. R.R.S., 2005 BCSC 757 at para. 34 (citing H.L.C.).
The judge added:
[23] …Orders for divorce are commonly granted as desk orders. In the case of divorce orders, the evidentiary and procedural requirements for the order are quite clear, as are the administrative processes and the rules of court. However, given the findings of fact that are required in order to grant a judgment annulling a marriage, I suggest that an application for a desk order annulling a marriage is almost certainly doomed to fail. Therefore, the more appropriate practice would be to commence an action, and to proceed to a trial, or perhaps a summary trial. Applications for annulment by way of desk order are likely to be a waste of time and expense for the parties, and a waste of judicial resources, as in this case.
The family lawyers at Crossroads Law have experience in void and voidable marriage and seeking annulments. If you're considering an annulment of marriage, call us today for your free 20-minute consult.
