“Annulment is a legal procedure for declaring a marriage null and void. An annulled marriage is considered to be invalid from the beginning, almost as if it had never taken place”
What is an Annulment? How is it different from a divorce?
An annulment is a legal procedure to dissolve a marriage, declaring it null and void. However, unlike divorce proceedings, an annulment works on the basis that the marriage never properly existed in the first place.
It is possible to consider a nullified marriage as an alternative to divorce. However, one must bear in mind the qualifying grounds for an annulment of marriage, which can be rather different than the typical grounds for divorce.
Does my marriage qualify for an annulment?
Chapter 3 of the Women’s Charter separates annullable marriages into ‘void’ and ‘voidable’ marriages. While void marriages are automatically annulled, voidable marriages can still be challenged. This applies to all marriages that have taken place after 1st June 1981.
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The following marriages are void under s. 105 of the Women’s Charter:
• s. 3(4), A marriage between persons who are Muslims
• s. 5(1), Anyone who is already lawfully married to a spouse under any law, religion, custom or usage.
• s. 9, A marriage between persons below the age of 18 years, unless specially authorized the Minister (under s. 21 of the Women’s Charter).
• s. 10, A marriage within specific degrees of kindred and affinity (as defined in the First Schedule of the Women’s Charter).
• s. 11, A marriage in which either party is already married under any law, religion, custom or usage to another person.
• s. 22, A marriage that has not been solemnized in the presence of 2 or more witnesses
– on the authority of a valid marriage license,
– by the Registrar or someone who has been granted a license to solemnize the marriage.
The following marriages are voidable under s. 106 of the Women’s Charter:
• s. 106(a), s. 106(b), Unconsummated marriages, due to one party being either unable or unwilling to consummate it
• s. 106(c), A marriage that has not been validly consented to, due to one party consenting under duress, by mistake, or with a mental disorder, etc.
• s. 106(d), A marriage that was validly consented to but, at the time of marriage, one party was suffering from a mental disorder that left them unfit for marriage (as defined in the Mental Health (Care and Treatment) Act 2008)
• s. 106(e), A marriage where, at the time of marriage, the Defendant was suffering from a communicable sexually-transmitted disease
• s. 106(f), A marriage where, at the time of marriage, the Defendant was pregnant by someone other than the Plaintiff.
What are the proceedings in an Annulment?
Under s.104 of the Women’s charter, either the husband or the wife in the marriage must file a Writ of Nullity. The party who files the writ will then become the Plaintiff, where the other party in the marriage will then become the Defendant.
The Defendant can challenge the annulment by proving to the court that:
• s. 107(1)(a), The plaintiff, knowing that they could have avoided the marriage, acted in a way that lead the defendant to reasonably believe the Plaintiff did not want to avoid it;
• s. 107(1)(b), It would be unfair to the defendant if the marriage were annulled.
Under s. 107 of the Women’s Charter, the following circumstances can also make an annulment invalid:
• s. 107(2), An annulment on the grounds under s. 106(c), (d), (e) or (f) will be invalid unless annulment proceedings began within 3 years from the date of the marriage.
• s. 107(3), An annulment on the grounds under s. 106(e) or (f) will be invalid unless it can be shown that the plaintiff was, at the time of the marriage, ignorant of the facts alleged by the grounds.
What happens after the Annulment?
If a Plaintiff is successful in proving that the marriage is annullable, the court will grant a Judgement of Nullity, dissolving the marriage.
However, any children born in the marriage will still be considered legitimate children.
Annulments can be confusing and intimidating. However, with a clear understanding of what to do, and the advice of a lawyer, an annulment may provide you with a viable alternative to divorce.