Grounds for an Annulment in Ontario: Void or Voidable?

Some people discover that their marriage may never have been valid. Perhaps a spouse was still married to someone else, or one person did not truly agree to the marriage. In those cases, people ask whether they can get an annulment instead of a divorce.

Annulment law in Ontario is unusual and not very intuitive. This article explains the circumstances that support an argument that a marriage is void or voidable, how that differs from divorce, and why you should speak with a lawyer before assuming your situation qualifies.

Divorce and annulment are different

A divorce ends a marriage that was valid. Under the Divorce Act, a court can grant a divorce on the ground that the marriage has broken down, shown by the spouses living separate and apart for at least one year, or by adultery or cruelty that makes continued cohabitation intolerable.

An annulment is different. It is about a defect in the marriage itself. The Supreme Court of Canada has said that a validly solemnized marriage may, under English law, be void or voidable on grounds other than those giving a right to divorce. Which label fits a particular defect, and what follows from it, is a legal question worth confirming with a lawyer.

Where Ontario's annulment law comes from

The federal Annulment of Marriages Act (Ontario) applies the English law of annulment as it stood on 15 July 1870 in Ontario, so far as it can be applied. It gives jurisdiction to the Supreme Court of Ontario, which is now the Superior Court of Justice, and that jurisdiction is also confirmed in the Courts of Justice Act.

The Divorce Act deals with divorce, and arbitrators cannot grant a divorce or annul a marriage. So an annulment is a matter for the court. The exact steps, evidence and timing depend on your case, and a lawyer can confirm them.

Circumstances that may support an annulment

The Civil Marriage Act sets out basic requirements for a valid marriage. It says marriage requires the free and enlightened consent of two persons to be the spouse of each other. It provides that no person under 16 may marry, and that no person may contract a new marriage until every previous marriage has been dissolved. This is the basis for treating underage and bigamous marriages as invalid.

Whether a particular defect makes a marriage void or voidable is a legal question that turns on your facts. Do not assume a problem automatically qualifies.

Related issues: criminal law and immigration

A person charged with bigamy has a defence if the earlier marriage was declared void by a court of competent jurisdiction. This shows why a court declaration can matter beyond family law.

Immigration is a separate question. Under the immigration regulations, a foreign national is not considered a spouse, common-law partner or conjugal partner if the relationship was entered into primarily to acquire any status or privilege under the Act, or is not genuine. A court annulment does not itself decide immigration status. False documents or misrepresented facts lead to refusal and a record of the misrepresentation.

• If immigration status is involved, get advice before taking any step.
• Never sign documents containing facts you know are untrue.
• An annulment and an immigration outcome are decided separately.

What to do next

If you think your marriage was never valid, collect the paperwork first. A lawyer can then tell you whether annulment, divorce or both make sense. Property and support questions after an annulment should be confirmed with a lawyer, since they depend on the facts.

• Marriage certificate and any earlier marriage or divorce records.
• Dates of birth of both spouses at the time of marriage.
• A timeline of how the marriage came about and what each person understood.
• Any immigration documents, if status is connected to the marriage.
• A list of property, children and support concerns.

Frequently asked questions