- A divorce ends a valid marriage, while annulment in Ontario is governed by old English law and not by the Divorce Act.
- A divorce requires breakdown of the marriage, most often shown by one year of separation.
- Property equalization can still be available after a void or voidable marriage entered in good faith.
If your marriage was very short, or you think something was wrong with it from the start, you may wonder whether an annulment is simpler or better than a divorce. The two are different legal routes, and they do not work the same way.
This article explains in plain terms how they differ in legal basis, in effect and in property rights. Your own facts matter a great deal here, so it is worth confirming your situation with a lawyer before you decide.
What a divorce does
A divorce is a court order that officially ends a valid marriage, and only legally married couples can divorce. The only ground under the federal Divorce Act is breakdown of the marriage.
Breakdown is usually shown by the spouses living separate and apart for at least one year before the divorce is decided, and being separated when the proceeding started. There is an exception: if the spouse the proceeding is against has committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable, breakdown can be shown without the one-year wait.
An Ontario court can hear a divorce proceeding if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding starts. Only one spouse needs to meet this requirement.
A divorce takes effect on the 31st day after the judgment is made. Once it takes effect, it dissolves the marriage and has legal effect throughout Canada. A certificate that the divorce dissolved the marriage is issued on request.
What an annulment is and how it is governed
Annulment in Ontario is not governed by the Divorce Act. It is governed by the law of England on annulment as it stood on July 15, 1870, as later changed by Canadian or UK legislation.
Because that law is old, it is hard to give a simple list of what qualifies. What the federal Civil Marriage Act does set out are basic rules for a valid marriage:
- Marriage requires the free and enlightened consent of two persons.
- No one under 16 may marry.
- No one may marry until every previous marriage has been dissolved.
Whether a particular problem makes a marriage void or voidable depends on the facts. A lawyer can tell you whether an annulment is realistic in your case, and whether a divorce is the more practical route.
Side-by-side comparison
| Point | Divorce | Annulment |
|---|---|---|
| Governing law | Divorce Act | English law as of July 15, 1870, as later changed |
| What is ended | A valid marriage | A marriage with a defect; depends on the facts |
| Basis | Breakdown of the marriage | Depends on the facts and the old law |
| Property claims | Equalization available | Can still be available |
The practical point is that a divorce has a clear modern test, while an annulment depends on older law and on your particular facts.
Property and spousal rights after an annulment
Many people assume an annulment wipes the slate clean. In Ontario that is not necessarily so. For Family Law Act purposes, a spouse includes two persons who entered a void or voidable marriage in good faith.
A declaration of nullity is one of the events that can fix the valuation date, so property equalization can still be available. Under equalization, the spouse whose net family property is smaller is entitled to one-half of the difference between the two spouses' net family properties.
The date of separation matters for property because the valuation date is the earliest of several dates, and one of them is the date the spouses separate with no reasonable prospect of resuming cohabitation. Some property is excluded from net family property, such as gifts or inheritances from a third party received after the marriage (other than a matrimonial home), and the person claiming an exclusion must prove it. The court may also award more or less than half the difference if equalizing would be unconscionable.
Time limits matter. An equalization claim must be made by the earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice.
What to do next
- Find your marriage certificate and note the date and place of the marriage.
- Write down the date you separated and where each of you lived.
- List the property and debts each of you had at marriage and at separation.
- Note any facts about consent, age or earlier marriages that worry you.
- Speak with a family lawyer before choosing between annulment and divorce.
Frequently asked questions
Is an annulment faster than a divorce in Ontario?
It depends on the facts. An annulment is not governed by the Divorce Act; it is governed by the law of England on annulment as it stood on July 15, 1870, as later changed by Canadian or UK legislation. How long it would take in your situation depends on the facts, so it is worth confirming with a lawyer.
Do I lose property rights if my marriage is annulled?
Not necessarily. A person who entered a void or voidable marriage in good faith is a spouse for Family Law Act purposes, and equalization can still be available.
Can I get a divorce if my marriage was only a few months long?
Yes, if the marriage is valid and breakdown is shown. That is usually one year of separation, or adultery or cruelty in the exceptional cases.
Can anyone marry at any age in Canada?
No. Federal law says no one under 16 may marry, and no one may marry until every previous marriage has been dissolved.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8 — Justice Laws (federal)
- Divorce Act, s. 3(1) — Justice Laws (federal)
- Divorce Act, s. 12(1) — Justice Laws (federal)
- Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14, s. 2 — Justice Laws (federal)
- Civil Marriage Act, ss. 2.1-2.3 — Justice Laws (federal)
- Department of Justice Canada – About Divorce and Separation — justice.gc.ca
- Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1), 4(1) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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