Anyone who has watched all 10 seasons of the hit TV sitcom Friends will remember the season 5 storyline where Ross and Rachel drunkenly marry in Las Vegas. You may also remember that quickly after that, Rachel pushes Ross to get the marriage annulled. So, what does it mean to get a marriage annulled?
What is an Annulment?
Very simply, an annulment is a court order that invalidates your marriage (as per the Annulment of Marriage of Act).
What is the Difference between an Annulment and a Divorce?
An annulment is different from a divorce because a divorce serves as the legal end to or termination of a marriage, whereas an annulment serves as a declaration that the marriage never existed.
Nonetheless, the result of an annulment and divorce are essentially the same – both allow the parties to remarry or enter into a domestic partnership with a new partner.
How do you get an Annulment?
In order to get an annulment, you must apply to the court for an order, and must be able to establish one of the legal grounds for an annulment.
Specifically, you must be able to demonstrate that either the marriage lacked formal validity (i.e. a legal defect in the marriage ceremony), or essential validity (i.e. one or both parties to the marriage lacked the capacity to get married).
Formal Validity of the Marriage
The formal validity of a marriage refers to a defect in the marriage ceremony. When getting married, parties must comply with provincial rules and regulations regarding the formalities of a marriage ceremony. Things that can serve as a defect under this ground is an irregularity in the Marriage License that was issued, or if the person who solemnized the marriage was not properly authorized to do so.
Essential Validity of the Marriage
The essential validity of a marriage refers to the capacity of one or both people in the marriage. There are generally five essential factors that makeup one’s capacity to be married:
- The parties’ ability to consummate the marriage: The parties can have sexual relations with one another.
- That there be no prior existing marriage: In Canada, one person cannot be married to two people at the same time. If a party was previously married, the previous marriage must have been annulled or terminated via divorce before that party can be remarried.
- The marriage is not outside the prohibited degrees of consanguinity and affinity: In Canada, you cannot marry a parent, sibling or half-sibling (even if they were adopted).
- Both parties be of age: You need to be at least 16 years old to get married in Ontario, as long as you have consent from you parents or legal guardians (unless you are an emancipated minor).
- Both parties have the capacity to consent to the marriage: A lack of consent can derive from a party being forced under duress into the marriage, or otherwise being unable to consent due to mental incapacity, fraud or mistake.
If you are able to meet one of the above listed thresholds, you may fill out an application for an annulment and submit it to the Ontario courts. Before the annulment is issued, it is likely that both parties will have to attend at least one court appearance before a Judge.
It is worth noting that there was a 6th essential factor that made for a valid marriage – namely that the two parties were previously required to be of the opposite sex – however, this is no longer essential for a marriage to be considered valid.
What about a Short-Term Marriage?
The length or duration of a marriage is entirely irrelevant to determining whether parties can obtain an annulment. To obtain an annulment, you must be able to demonstrate that one of the above noted invalidities exists. If you are unable to meet this requirement, and even if you were only married for days, weeks or months, you will have to end your marriage via a divorce.
Are Annulments Common?
It is incredibly difficult to obtain an annulment in Ontario. In order to obtain an annulment, a party must be able to establish very specific criteria (as set out above), and this can often be difficult to do.
At GDH Family Law LLP, we understand how overwhelming the end of a marriage can be. We have years’ worth of experience dealing with annulments and divorce, so let us assist you as you navigate the end of your relationship.
If you have additional questions about annulments or divorces, call us at (416) 535-6944 for a free initial consultation.