Q: My marriage has fallen apart. For religious reasons I want an annulment, not a divorce. I’ve seen a lawyer who says that may not be possible. What is the law in this area?
A: The exact answer to this would depend on more detailed information, which is highly personal and that I’m sure you don’t want to supply in print. However, the general law in this area is well settled.
First, note the distinction between ecclesiastical and secular law. Various churches grant marriage annulments but they are based on religious law, not on the law of Canada or its provinces. The method to get an annulment through your church or religious organization is likely different from what a court would require. You would have to consult your clergy for direction on this point.
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In secular law, people who have gone through a ceremony of marriage can end that legal relationship in two ways, either annulment or divorce. Most people are familiar with divorce. It is a judgment of a court that ends a marriage. It is important to note that for there to be a divorce, there first has to be a legally valid marriage. If the marriage is valid, then the only way to end it and to change your status is to go through a divorce.
To get a divorce you must have a reason. In Canada these include living separate and apart for at least one year, physical or mental cruelty or adultery (your spouse having sexual intercourse with another person after your marriage, without your consent.)
The effect of a divorce is to change your status from married to divorced. The records will then show that you were once legally married, but no longer are. Divorces only work prospectively; that is, into the future.
Annulments deal with something different in law. They involve situations where the marriage is not valid, either because it is void from the start or voidable. The result of a judgment granting a legal annulment is to declare that the marriage was not valid at all. It is struck from government’s vital statistics agencies, and it is as if it had never occurred. Annulments work both retroactively and prospectively. This means if you get an annulment, at law, it is as if the marriage was never performed.
You also need grounds for an annulment but they are different from those for a divorce. These grounds must disclose an impediment to the marriage itself. If one party to a marriage is already married, the second marriage will be void. For example, a person who is intoxicated during the ceremony may later apply for an annulment because the marriage is voidable. Marriage to a close relative or an underaged person is voidable. A forced or coerced marriage can likely be annulled. A person under a physical or mental disability at the time of the ceremony can apply for an annulment.
Also, if the marriage is never consummated, it may be annulled. There is still a legal requirement that a married couple have sexual intercourse to validate it. If that never happens, the marriage may be voided through an annulment.
Interestingly enough, motives for getting married are not grounds for annulment. So if you marry purely for money and not for love, or marry to allow someone to immigrate and stay in this country, you will have to get a divorce to end the marriage.
Obviously, to get either a divorce or annulment, you will have to seek legal advice. It may be that a requirement at law that you get a divorce does not mean your church will not grant you an annulment. Ask lots of questions and get the most information you can from all sources.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
