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Why Bother with a Marriage Annulment, Instead of Divorce? The Answer Lies in Canada’s Religious and Cultural Diversity

Why Bother with a Marriage Annulment, Instead of Divorce? The Answer Lies in Canada’s Religious and Cultural Diversity

In this day and age where divorce is increasingly common and bears little lasting stigma, you may be wondering why an unhappily-married couple would bother with a marriage annulment, rather than just get divorced.

To be clear:  An annulment is the legal remedy in which a court declares a marriage null and void on certain grounds.  In this context, a “void” marriage is one that, in the eyes of the law, never existed in the first place.

By contrast in a divorce, the court declares the valid legal marriage to be formally ended.

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It may seem like a distinction without a meaningful difference.  Why does modern Canadian law still need to bother declaring marriages void in some cases?

The court in a decision called Lowe v. A.A. has the answer.  In the course of its ruling, it took a moment to reflect on the purpose and modern relevance of marriage annulments.  The court observed:

The law of annulment may seem outmoded. Much of the case law in this area dates back to an earlier time when divorce was less accessible. Indeed, the statutory basis for annulment – the Annulment of Marriages Act (Ontario) (“the Act”) – expressly adopts the laws of England as of 1870. It has not been updated since that time by Canadian legislative enactment. Given the relative ease with which parties to a marriage can obtain a divorce today and the decrease in stigma in many sectors of society of being a divorced person, it might at first appear that an understanding of the law of annulment is no longer a necessary part of a family lawyer’s toolkit.

The court then notes that – on account of Canadian cultural diversity around marriage – the laws on marriage annulment remain relevant.  It said:

 A review of the case law, however, shows this is not the case. Due perhaps to the increasing pluralism of today’s society, Canadian courts are not infrequently asked to resolve issues involving families with diverse cultural and religious norms surrounding marriage. These cases include foreign marriages entered into in jurisdictions where polygamy is considered legal, as well as cases where a marriage is not deemed formally entered into by the same criteria as in Canadian law.

Finally, annulments remain useful in cases of deception of one new spouse by another.  The court said:

 Annulments have also been sought where a spouse is misled or deceived into entering into a fraudulent marriage.  Furthermore, because divorce may still carry stigma in some communities, annulment, where it is available, may be a preferred legal mechanism for ending a marriage. For these additional reasons, in my view, the distinction between annulment and divorce remains relevant and worthy of current articulation.

For the full text of the decision, see:

Lowe v. A.A., 2018 ONSC 3509 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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