Marriage Annulment vs Divorce
Do I file for a marriage annulment or a divorce?
You got married a few years ago and things are not going as well as you had hoped for.
You heard about marriage annulment as an option and you wonder if it’s the right recourse for you.
You wonder what is the difference between marriage annulment and a divorce?
In this article, we will look over marriage annulment and divorce as legal regimes and give you the highlight of their main differences.
After reading this article, you will know exactly if marriage annulment may be a suitable legal recourse for you or not.
In this article, we will look at the following points:
- What is a marriage annulment?
- What is the basis of a recourse for marriage annulment?
- How long do I have to file a marriage annulment case?
- The effects of the nullity of the marriage
- Impact of the marriage nullity on children
- Spousal support in the context of marriage annulment
- Divorce
- Does the court consider if a spouse was in bad faith?
- Duties of lawyers and court
- Some similarities with marriage annulment
- Conclusion on Marriage Annulment vs Divorce
1. What is a marriage annulment?
Marriage annulment is essentially asking the court to cancel your marriage as if it never existed.
On the other hand, a divorce supposes that your marriage was valid and upon filing of a divorce application, you are looking to terminate the marriage as of that moment in time.
From a legal point of view, marriage annulment is a very exceptional recourse.
The court will exercise great care in ensuring that the legal conditions necessary for the successful ordering of the marriage annulment are met, if not, marriage annulment will not be granted.
Fundamentally, you must ask yourself, were you tricked into a marriage or did your spouse make a misrepresentation about crucial facts that, had you known, you would have never gotten married in the first place.
There is an important distinction between choosing to marry the wrong partner or illegally getting manipulated into a marriage for instance.
2. What is the basis of a recourse for marriage annulment?
The basis of a recourse for marriage annulment is that you consider the marriage to be illegally formed or your consent was vitiated through the misrepresentation or deliberate manipulations on the part of your spouse.
In the province of Quebec, this recourse is founded upon the Civil Code of Quebec, a provincial law.
Article 380 of the Civil Code states the following:
A marriage which is not solemnized as prescribed by this Title and the necessary conditions for its formation may be declared null upon the application of any interested person, although the court may decide according to the circumstances.
No action lies after the lapse of three years from the solemnization, except where public order is concerned, in particular if the consent of one of the spouses was not free or enlightened.
This article therefore outlines both the legal conditions and timelines for filing a marriage annulment recourse.
3. How long do I have to file a marriage annulment case?
Legal Timeline
The Civil Code clearly states that you must file your annulment case within three years from the date of your marriage.
This requirement is pretty strict and so you must act within the allocated timeline failure of which you will not be able to take this recourse.
If you’ve been married to someone for more than three years even if you had sufficient reasons to cancel your marriage, your only option will be to file for a divorce, unless there was a violation of the public order warranting the nullity of the marriage.
Violation of public order
On the other hand, there is an exception if the marriage was solemnized for a cause that violates the public order.
For example, if your spouse has married you for the sole and only purpose to become a Canadian citizen, that could be a reason in violation of the public order.
In this case, you may feel that you have genuinely married the person to live a long life together while your partner was only interested in coming to live in Canada.
4. The effects of the nullity of the marriage
Spouse in bad faith
A spouse that is considered to be in bad faith must take back his or her property after the marriage is declared null.
Spouse in good faith
On the other hand, if a spouse was in good faith although the marriage was declared null will have the right to the liquidate of his or her patrimonial rights.
The parties are presumed to be in good faith when contracting their marriage unless the court specifically declares a spouse in bad faith.
Gifts
With regards to gifts offered by one spouse to the other, if the spouse was in good faith, the spouse will be entitled to the gifts received in consideration of the marriage.
The court will have some discretion in reducing the value of the gift or declare the gifts as null as well depending on the overall circumstances of the case.
5. Impact of the marriage nullity on children
Responsible for children
If the couple whose marriage is annulled have children, the law makes it clear that as parents they remain responsible in raising a child that may have been born during their marriage.
Evidently, the laws are highly protective of children and are designed to prevent harm to them in the event the marriage of the parents is nullified.
Challenges in raising your child
We do recognize that it may be a very difficult situation to live when you find out that the spouse you believed to be marrying for the rest of your life had tricked you in marriage or was pursuing an objective going against the public order.
In this context, there may be significant feelings of betrayal that will potentially spill into your parental role of raising a child you have both brought into the world.
The same rules governing custody and child support will then apply to the parents, the whole, in the best interest of the child.
6. Spousal support in the context of marriage annulment
Court can award spousal support
The Civil Code of Quebec states that when dealing with a nullity of marriage case, the court must decide on matters relating to the children and particularly the rights of a spouse in good faith to receive spousal support.
The court also can consider the circumstances of the case and decide on how spousal support can be paid or reserve the right of a party’s spousal support if the other is unable to pay.
The law requires that the court consider the circumstances and reach an equitable decision given the specific nature of the case.
Reserving right to spousal support
If the court reserves the right of a spouse to receive spousal support, then that right will expire two years after the judgment if no spousal support is demanded.
At any time after the marriage annulment judgment, the court has the power to terminate spousal support whether it has awarded spousal support or had reserved a spouse’s rights to spousal support.
7. Divorce
Dissolution of marriage
The Divorce Act outlines in article 8 that the court may grant a divorce to a spouse on the ground that there has been a breakdown of the marriage.
This entails that the spouses were married and both recognize the validity of their marriage and now intend to dissolve their marriage as they meet the legal grounds in getting a divorce.
Breakdown of marriage
The Divorce Act further clarifies that the breakdown of the marriage is established in the following events:
- The spouses have been living separate and apart at the commencement of the proceedings and separate and apart for at least twelve months on the rendering of the divorce judgment,
- The spouse against whom divorce application is brought has committed acts of adultery, and
- The spouse against whom divorce application is brought has treated the other with physical or mental cruelty of such a kind as to render the marriage and cohabitation intolerable.
8. Does the court consider if a spouse was in bad faith?
Unlike the annulment of the marriage, whether a spouse was in good faith or not is irrelevant with respect to the partition of the assets and division of the family patrimony.
On the other hand, in the context of an annulment case, a spouse that was in good faith can request his or her patrimony rights or be restituted in full.
The divorce institution in Canada and Quebec is considered a “no-fault divorce” where the marital faults of a spouse will not impact the rights granted to the spouses under the law.
9. Duties of lawyers and court
Another notable difference in cases of divorce as opposed to marriage annulment is that under the Divorce Act, both the lawyers representing the parties and the court have a duty to help reconcile the spouses.
Duty of the lawyer
The law imposes on the lawyer a duty to discuss the possibility of reconciliation and even the possibility to seek marriage counselling or guidance facilities to assist the spouses in achieving a reconciliation.
Duty of the court
The law furthermore imposes on the court a duty to verify the parties can reconcile and ensure that there is really no possibility of reconciliation before rendering a divorce judgment.
10. Some similarities with marriage annulment
Collusion of the spouses
When there is a violation of the public order, under the annulment of marriage regime, a spouse may ask for the nullity of the marriage even past the three year timeline to do so.
There is a similarity under the Divorce Act as it states that the court must dismiss the divorce application if the spouses were acting in collusion.
In Section 11(4) of the Divorce Act, collusion is defined as:
an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.
Child support and custody
Both the divorce institution and annulment of marriage have clear guidelines with respect to child support and custody.
Under both regimes, the law sets out to protect the children of a marriage regardless whether the marriage is considered valid or not in the eyes of the law.
If you have a child during your marriage, then both parents will remain obligated to raise that child and ensure adequate maintenance is offered.
Spousal support
The Divorce Act outlines the objective sought when ordering or awarding spousal support.
Article 15.2(6) outlines the following objectives:
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
As you can see, the law wants to ensure that spousal support is awarded to cover any disadvantages that a spouse may suffer economically as a result of the breakdown of the marriage.
It may be difficult for a spouse who did not work during the marriage to immediately go out and find a job.
As a result, the court will ensure that in such a case, the spouse can be awarded spousal support for a duration of time reasonable to be able to learn new skills or to go back in the job market.
Child support is priority
When considering an application for both child support and spousal support, the court must give priority to the child support demand first.
When child support is determined, the court can then consider the spousal support demand and come to a decision that will take the overall economic impact of the division of the assets, child support and the overall economic impact of the divorce on both spouses.
11- Conclusion on Marriage Annulment vs Divorce
As we can see, the annulment of marriage institutions along with the divorce institution have important differences but also many similarities.
If you are dealing with a breakdown of your marriage and feel that it was mainly due to incompatibility between you and your spouse, you may be looking towards a divorce.
On the other hand, if you feel violated into getting married for reasons that you discovered after you were married and feel that regardless of your compatibility, you are unable to continue living with your spouse, then you may be looking at an annulment of marriage case.
At the end of the day, getting an annulment is quite difficult.
For many, the distinction between a divorce and annulment is not clear.
You may have chosen a very bad partner to marry but the day you were married, you did give free consent to do so.
On the other hand, if you thought you were marrying a man while it turns out you married a woman, it is difficult to justify that your consent was freely given.
In this case, the nullity of marriage may be the more suitable recourse.
We hope that this article gave you some high-level understanding of the differences between divorce and annulment of marriage.
FamilyLawyer.Zone
