Marriage Annulment in Ontario: Grounds and Court Process

Some people discover that their marriage was never valid in the first place. Perhaps one person did not truly consent, or a previous marriage was never ended. In those cases, you may be asking whether you need a divorce at all, or whether the marriage can be declared invalid.

This article explains how annulment differs from divorce in Ontario, what the law says about a valid marriage, and what happens to property and wills afterwards. Annulment is a narrow and technical area, so it is worth speaking to a family lawyer before you decide which path fits your situation.

Annulment and divorce are different things

A divorce is a court order that officially ends a valid marriage, and only legally married couples can divorce. An annulment is different in concept: it is a finding that the marriage was never valid in the first place.

In Ontario, annulment is governed by the law of England on annulment as it stood on July 15, 1870, as later changed by Canadian or UK legislation. It is not governed by the Divorce Act. That means the Divorce Act tests, such as the one-year separation period, are the rules for divorce and are not the starting point for an annulment.

What makes a marriage valid

Federal law sets out basic capacity rules. These are the clearest guide to when a marriage may be open to challenge:

• 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.

Beyond these rules, whether a particular marriage is void or voidable depends on the facts and on older law that is not set out in a simple list. A lawyer can tell you whether your circumstances may qualify and what evidence would matter.

How the court process generally works

Because annulment rests on older law rather than the Divorce Act, it does not follow the usual divorce checklist. The exact steps, forms and evidence depend on the facts and on how the claim is framed, so this is an area where getting advice before filing anything is especially useful.

In general, you can expect to need the following:

• Your marriage certificate or registration, and details of where and when the marriage took place.
• Records showing why you say the marriage was never valid, such as proof of an earlier marriage that was not dissolved.
• Dates of any separation and details of shared property, debts and children.
• Any earlier court orders or agreements between you and your spouse.

If the marriage was valid, the route to ending it is divorce, which has its own steps. A divorce is based on breakdown of the marriage, usually shown by living separate and apart for at least one year.

Property, support and wills after an annulment

A declared invalid marriage does not necessarily leave you without property rights. For Ontario Family Law Act purposes, "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. Time limits apply. One of the possible deadlines is two years after a divorce or nullity judgment, and the court may extend time only in limited circumstances.

Wills are affected too. Unless the will shows a contrary intention, a divorce or declaration of nullity made after the will is signed revokes any gift to the former spouse and their appointment as executor or trustee. The rest of the will remains valid.

What to do next

Start by working out whether your concern is really about validity or about the marriage simply having ended. Then collect your documents and speak with a family lawyer, particularly about the deadlines that may apply to property claims.

• Gather your marriage certificate and any records of earlier marriages.
• Write down the key dates: marriage, separation and any court filings.
• List your property, debts and pensions, including RRSPs, which count as property.
• Review your will and consider updating it once your status is clear.

Frequently asked questions