Marriage Annulment in Ontario: Grounds and How to Apply

Some people asking about annulment believe their marriage should never have counted at all, perhaps because one person did not truly agree to it, or because one person was still married to someone else. An annulment is a different idea from a divorce, and the difference affects which law applies and what you ask a court for.

This article explains what annulment is in Ontario, the federal rules about who can validly marry, how property can still be dealt with, and how to decide between an annulment and a divorce. Annulment is a technical area, so the final answer for your situation depends on the facts and is worth confirming with a lawyer.

Annulment and divorce are not the same thing

A divorce is a court order officially ending a valid marriage, and only legally married couples can divorce. An annulment is based on a different starting point: the argument 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, under the Annulment of Marriages Act (Ontario). It is not governed by the Divorce Act. That means the rules are older and less familiar than the divorce rules, and they are not set out in a simple list in one modern statute.

What the law says makes a marriage valid

The Civil Marriage Act sets basic capacity rules. Marriage requires the free and enlightened consent of two persons. No one under 16 may marry. And no one may marry until every previous marriage has been dissolved.

These rules point to the kinds of problems people raise when they ask about annulment: a person who did not freely agree, a person who was too young, or a person who was still married to someone else. They are the starting point only. Whether a particular situation leads to a marriage being declared void, or only open to challenge, depends on the older law that applies and on the facts, so a lawyer should confirm it before you rely on any one of them.

• Consent: was each person's agreement free and informed?
• Age: was either person under 16 at the time?
• Earlier marriage: had every previous marriage of either person been dissolved?

How an annulment is pursued

Because annulment is not under the Divorce Act, the divorce steps you may have read about do not simply carry over. The filing steps, evidence and timelines for an annulment depend on how the court treats your particular claim, and a lawyer can explain them for your facts.

Divorce and annulment answer different questions. A divorce ends a valid marriage, so it is not a simple substitute if the real issue is whether the marriage was ever valid. If a marriage is valid and has broken down, the only ground for divorce under the Divorce Act is breakdown of the marriage. Which route fits your facts depends on your situation, so it is worth confirming with a lawyer before you file anything.

Property and wills after an annulment

People often worry that a void marriage leaves them with no property rights. In Ontario, 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 equalization of property can still be available.

Where equalization applies, the spouse whose net family property is smaller is entitled to one-half of the difference between the two spouses' net family properties. The court may award more or less than half the difference if equalizing would be unconscionable. Time limits apply. For an equalization claim, the limit is 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, although 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.

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, and the will is read as if the former spouse died first.

What to do next

• Gather your marriage certificate, and the date and place of the marriage.
• Write down the facts that make you think the marriage was not valid, such as ages, consent and any earlier marriages.
• Collect any earlier divorce or death records for either person.
• List your property, debts and pensions as of the date you separated.
• Note any deadlines for property claims, because they can run from a separation or a judgment.
• Ask a lawyer whether annulment or divorce fits your facts before you file anything.

Frequently asked questions