Terminating a marriage is always a painful decision that both parties have to make after much thought and deliberation. There are two options to dissolve the marriage: annulment and divorce.
Annulment is the legal invalidation of the marriage, while divorce is the legal conclusion of the marriage. There are also many other differences that will help you decide which route to take.
Our divorce law attorney has created a comprehensive guide for you to understand annulment vs. divorce and the top seven differences between the two.
What is an Annulment?
An annulment is a legal order by the court that states that your marriage was never valid. The Annulment of Marriages Act (AMA) guides the annulments in Ontario.
If you want to get your marriage annulled, you must apply to the court. When you do, you will have to showcase that there was an issue with the marriage’s validity.
To understand annulment in Canada better, let’s take a deep dive into the topic below:
Grounds for Annulment in Canada
One of the top grounds for annulment in Canada is proving that your marriage was invalid legally in the province in which it took place.
You need to have sufficient grounds to annul your marriage, which includes the following:
- If one or both the parties were tricked into getting married. This is known as marriage under false pretenses
- When one of the parties was already legally married to someone else at the time of the second marriage
- If one or both parties discover that they are too closely related to one another, such as through adoption or birth
- When the marriage is entered through an act of duress or coercion
- If you or the spouse were under 18 when the marriage took place and happened without the permission of your parents
- If one of the spouses concealed a major issue, such as a criminal record, child, substance abuse, etc.
- When the parties were under the influence of alcohol or drugs during the marriage ceremony, which hindered the ability to understand and provide consent
- There was a failure to consummate the marriage. An important note regarding this is that it is challenging to prove, as the court needs physiological and medical evidence to prove this ground
These are some of the top grounds for annulment in Canada. Depending on your case, there can also be other reasons that can lead to an annulment.
We recommend speaking to a divorce attorney in Canada to help guide your decisions better.
Annulment Time Frame Canada
The timeframe for getting an annulment in Canada differs from case to case. Each case is unique and complex, which can also complicate matters.
Typically, the courts will look at how long you and your spouse waited before filing for an annulment. We recommend not waiting too long before you file for an annulment in Canada.
The sooner you file for an annulment, the higher your chances will be of getting approval and invalidating your marriage. We recommend speaking to your divorce lawyer as soon as you decide to annul your marriage.
Some provinces also have strict time limits for seeking an annulment.
For example, when you want to get an annulment in Ontario, you have to do it within two years from the marriage date or within two years of discovering the facts that make the marriage void.
How to Get an Annulment in Canada
If you want to get an annulment, you will have to follow these steps:
- Determine whether you are eligible for annulment, as you have to meet the grounds for annulment
- File an application with the Civil Court of Law
- Attend court, as they will consider whether your application is valid and whether you will get the annulment or not
Remember that these are the basic steps you must follow. In practical terms, getting an annulment in Canada is complicated, and it is best to seek professional advice before you move forward with this decision.
What is a Divorce?
A divorce takes place when the spouse or spouses want to legally terminate their marriage before the family court. They can settle their matters through divorce mediation or give the power to the court to sort their matters.
If children are involved in the proceedings, then the matter can become even more complex. As compared to annulment vs. divorce, the latter doesn’t nullify the existence of a marriage.
Instead, divorce is the process whereby a valid marriage is legally concluded. The proceedings are much more complex, and it can take an emotional or mental toll on you.
Grounds for Divorce
There can be many grounds for terminating the relationship with your spouse. However, if you want to get a divorce in Canada, you need to show that you are terminating your marriage due to these three reasons:
- Your spouse has committed adultery
- You and your spouse have been living apart for a minimum of one year or have been separated
- Your spouse is mentally or physically cruel to you, which has made the circumstances of living together intolerable
The Divorce Act in Canada is the federal law that governs the termination. If you want to know more, you can contact a reputable divorce attorney to help you understand the grounds in much more detail.
Annulment vs. Divorce in Canada: 7 Key Differences
Now that you have some idea about annulment and divorce, it is time to understand the differences in detail.
Here are some of the key differences you will find between annulment vs. divorce:
1. The Procedure of Ending the Relationship
The procedure of an annulment requires you to contact a family law attorney and prove that you fulfill the grounds for an annulment in Canada. It takes place in the Civil Court of Law, and it will affirm that your marriage was never legal.
On the other hand, divorce proceedings take place in the Family Court of Law. You need to apply to the court and meet the criteria for being legally married in Canada.
You also have to complete a separation period of one year before you apply for a divorce. Even during this time, you must create a separation agreement in Ontario to sort your affairs.
2. Matter of Children’s Involvement
Typically, an annulment doesn’t involve children because the marriage time frame is much shorter for the annulment.
However, if you have children from an annulled marriage, then the parents will have to individually seek custody or work out an agreement between themselves of shared custody.
The reason for this is that an annulment invalidates the marriage. So, they have to seek custody as if the child had been born without the legal marriage.
On the other hand, divorce has many strict regulations and rules, especially when children are involved. Parents have to agree to a custody agreement.
If they don’t, then a judge will decide in the best interests of the child. Because of this, it is crucial to hire a divorce mediation lawyer to settle your matters beforehand.
3. Time Frame of Annulment vs. Divorce
The time frame is not a major difference, but still worth noting. Most people get their marriage annulled as soon as there are grounds for an annulment.
On the other hand, the timeframe for divorce in Canada is a separation of at least one year. Even during the separation time, it is best to talk to a professional and ask relevant questions from a separation lawyer to make matters clear.
They will help you with the matter, and it will also make deciding between annulment vs. divorce much easier.
4. Spousal Support
After a divorce, there are times when the spouses are entitled to a certain number of years of spousal support. Typically, the spouse with the higher income has to support the spouse with the lower income.
On the other hand, this is not the case with an annulment. The parties are not considered to be valid spouses, which means that no spouse is eligible for spousal support.
Instead, the financial matters of both parties will be the same before they get married. Between annulment vs. divorce, you will not receive any support in the former.
5. Grounds for Annulment vs. Divorce
An annulment is grounds-specific. There have to be valid grounds for why you want to annul your marriage in Canada.
If you don’t fulfill these grounds, then the court will not annul your marriage. On the other hand, divorce doesn’t need a major ground.
Instead, you can separate from your spouse for whatever reason for a year and then file for a divorce. Most people stipulate that they would like to divorce because of irreconcilable differences after separating for a year.
6. Religious Annulment vs. Divorce
A religious annulment is not a substitute for a legal annulment. It is also not binding on the courts.
Many people think they can opt for a religious annulment if they want to invalidate their marriage. However, if you want to get your marriage annulled religiously, then you will need to opt for the church law and not civil law.
There is no such thing as a religious divorce, and you will have to seek the courts for this purpose. We recommend you speak with your divorce attorney to get a divorce in the proper manner when deciding between annulment vs. divorce.
7. Cost of Annulment vs. Divorce in Ontario
Generally, getting an annulment is much less expensive than a divorce. However, the exact cost of annulment in Ontario will depend on the court fees and the complexity of your case.
If you are also opting for legal representation during an annulment, then your costs will increase. We recommend you speak to a lawyer to get a better idea of the annulment cost in Canada.
According to a Canadian Legal Fees Survey, the average cost of an uncontested divorce is over $1,300 and $12,800 for a contested divorce.
On the other hand, if you take your divorce to court, then it will cost you more than $50,000. Getting a divorce is much more expensive, and the process also takes longer.
So, be sure to keep this major difference in mind when thinking about annulment vs. divorce.
What qualifies for annulment in Canada?
If one party did not have the mental capacity to enter into a valid marriage contract, it would be enough to qualify for annulment in Canada. Other grounds include being under the influence, close relations with another, marriage under duress, and more.
How long do you have to be separated before divorce in Canada?
You must have been living apart for at least one year before you filed for a divorce in Canada. This is a key ground to fulfill when applying for a divorce. Then, the courts will grant your divorce.
What makes a marriage invalid in Canada?
A marriage can be invalid if one spouse was already married at the time of the second marriage. Another reason is when both parties are under 18 and don’t have parental permission to marry.
Can I divorce in Canada if I married abroad?
Typically, Canada recognizes foreign marriages as long as one or both spouses have been living in the country for at least a year before the divorce. If the divorce was valid in the country in which it took place, then it would also be valid in Canada.
Annulment Vs. Divorce: Final Thoughts
Now that you understand annulment vs. divorce in Canada, you can decide which route to take. If you are still on the fence, we recommend you talk to an expert to make the right decision.
A divorce lawyer will make sure you choose an option that will be most beneficial for your mental, emotional, and financial health. If you want to talk to an expert, get in touch with our family lawyer today.
- Athena Narsingh is a trusted and knowledgeable lawyer in Scarborough. Her expertise spans real estate law, family law, adoptions and fertility law. A lawyer by profession and a humanitarian by heart, Athena Narsingh wants to help people become more familiar with the legal system and be well-informed to make important legal decisions.
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