Family Law Blog

Annulment vs Divorce - What is the Difference?

Annulment vs Divorce - What is the Difference?

Wondering what are the differences between a marriage annulment and a divorce in Canada? In both cases, these paths spell the end of a union. However, the requirements needed to satisfy each according to BC and federal law are very distinct. 

So in this blog, we’ll take a look at how annulment vs divorce are defined, sought, and differentiated.

Annulment vs Divorce - Definitions & Differences 

When it comes to the differences between annulment and divorce, the primary factor is whether or not the marriage was valid in the eyes of the law. 

In other words, a divorce is the legal process that puts an end to a legal marriage/union, whereas an annulment is a court order declaring that a marriage/union was invalid or never existed. As the result of an annulment, a court nullifies any legal precedent declaring a marriage happened. 

Keep in mind that both annulments and marriages are granted only when certain requirements are met. 

What’s more, an annulment is typically a faster, easier, and less expensive process (but not always). However, annulments are fairly rare in Canada, and much more difficult to qualify for due to high legal barriers. To understand why, let’s dive into the criteria for each.

Criteria for Annulment

To successfully annul a marriage, certain legal criteria (commonly termed “legal defects”) must be met that prevents one or both parties from becoming legally married. Such defects include situations where:

  • One partner was already married, and the other party didn’t know
  • One partner was under the age of 16, or was 16 or 17 years old but didn’t obtain parental permission
  • Both partners are closely related by blood or adoption
  • One partner didn’t understand the meaning of marriage
  • One partner was forced to marry against their will
  • The marriage ceremony was not performed properly (e.g. the celebrant did not have legal power to officiate the union)  
  • The married couple were unable to consummate the marriage – due to a physical or psychological condition – typically after several unsuccessful attempts (note: simply choosing to not have sex does not qualify) 

If any of the above scenarios are true, note that the BC courts will need sufficient evidence to verify the claim. This could come in the form of sworn affidavits and/or witness statements, medical histories, and legal documents. 

The bottom line is: Legal defects can be difficult to satisfy or prove, and they’re not something you can just obtain based on disagreements. If you’re looking to start the annulment process or want to learn more, check out this blog

Criteria for Divorce 

One or both parties must prove to the court that the marriage has broken down in at least one of three ways: 

  • The spouses have been separated for a minimum of one year (note: the spouses can still live at the same residence, as long as they’re able to prove their “marriage-like” quality of relationship and intimacy has ended) 
  • One partner committed adultery that the other did not approve of or forgive
  • One or both partners has shown cruelty (been mentally and/or physically abusive) to the other

Read this blog to find out the steps involved to get a divorce in BC.

Religious Annulments and Divorces

Some religions allow for religious annulments or divorces. While this acknowledgment can be symbolically relevant, keep in mind they do not legally cancel the marriage. Legal annulments and divorces must be granted by a Canadian court.

Annulment vs Divorce - Foreign Marriages 

BC law will recognize your marriage so long as it is valid in the original place it was performed. In the same way, the law recognizes valid annulments and divorces. 

If the couple was married elsewhere, the federal courts are able to grant a divorce so long as the marriage was seen as valid in Canada, the spouses have been living here for at least one year, and the above requirements for a divorce were met. 

The law around obtaining an annulment for foreign marriages, however, is complicated. We recommend getting in touch with an expert that deals with annulment in the original place the marriage first took place.  

Here to Help

If you have more questions that weren’t answered or want to discuss getting an annulment or divorce in BC, get in touch with our team of experts at Westside Family Law. We are standing by to assist you in any and all matters related to family law and its intricacies.