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What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

married couple holding hands

What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

Divorce is a common solution for those who find themselves married to people that they are no longer in love with.   But in prior posts we covered a case in which the wife was asking the court to declare her marriage to the husband legally “void”.

You may be wondering what the difference between divorce and a void or voidable marriage is, and why a spouse may opt for the more uncommon remedy for being in a bad marital relationship.

This esoteric legal issue was covered comprehensively in a recent case called Lowe v. A.A. where the court traced the historic need for the distinction.  It noted that a “void” or “null” marriage is not a divorce by another name.   Rather, it is one that is regarded – for all purposes – as never having taken place.   The marriage never existed because it was flawed from the outset, and no legal consequences ever arose from it.

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A divorce, in contrast, presupposes that a previous marriage did exist; the divorce order serves to put that married status to a formal end.   A divorce can be granted where there was a valid existing legal marriage in the first place, but where some cause to end it arises afterwards.  The divorce does not impinge on the reality that the marriage did exist in the past.

Returning to flawed marriages:  They can be “void”, or “voidable.”   A marriage is legally void from the outset in certain defined circumstances, for example where:

  • One or both spouses was married to other people at the time of the marriage;
  • One or both of them did not consent to the marriage, or they lacked the mental capacity to consent;
  • The spouses are related to each other within prohibited degrees;
  • One or both of them is under the age of majority at the time of the marriage; or
  • The marriage ceremony was incomplete.

What may be surprising is that since a void marriage never existed in the first place, there is no legal need to formally annul it by way of a court declaration.  (Still, some spouses may want to go that extra step to avoid problems in the future, or for religious reasons.  Any court declaration they receive would merely confirm the existing state of affairs.)

A voidable marriage, on the other hand, is one that can be declared void by a court after-the-fact, in cases where:

  • The marriage was entered into for fraudulent purposes; or
  • Consummation of the marriage is impossible because: 1) one or both spouse lack the capacity; or 2) a spouse willfully refuses to consummate the marriage, for example due to repugnance.

In these situations, the marriage does exist and has full intended legal consequences under the law and otherwise, until it has been declared annulled by a court of competent jurisdiction.  In other words, it is a valid and subsisting marriage until it has been pronounced to be otherwise.

So how does this affect spousal support rights and entitlements?   Family law is generally geared toward protecting formally-married and common-law couples, so the fact that a marriage was actually void and never existed could theoretically impact the rights of the participants.  Fortunately, under the Ontario Family Law Act, the definition of “spouse” specifically includes individuals in a void or voidable marriage, provided one or both parties underwent the marriage in good faith.

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