By Satya Bagga, Family Law solicitor at Irwin Mitchell
The difference between annulment and divorce
An annulment acknowledges and declares that the marriage was invalid i.e. that it no longer or never validly existed. A divorce is a legal process whereby the marriage is ended. To apply for a divorce, you have to be married for at least a year. There is no minimum time to wait to get an annulment and can be preferable for individuals who have strong religious or cultural reasons for not divorcing.
What are the grounds for annulment?
In order to annul a marriage, you would need to show that the marriage: -
- Was never legally valid – ‘Void’
- Was legally valid but meets one of the criteria that would make the marriage ‘Voidable’ and therefore capable of being annulled.
A void marriage will be considered by the Court as never having taken place i.e. it is void “ab initio” (from the outset) if: -
- The marriage is not legally valid for example:-
- You are closely related to the person you are marrying
- You are under the age of 16
- Either of you have intermarried in disregard of certain requirements as to the formation of marriage
- Either party was already lawfully married or in a civil partnership at the time of the marriage.
There are eight grounds on which a marriage is voidable: -
- The marriage has not been consummated owing to the incapacity of one party
- The marriage has not been consummated owing to the refusal of the other party not to consummate it
- If either party is in the process of transitioning to a different gender
- If the other person had a sexually transmitted disease when you were married
- If the woman was already pregnant by another man when you were married
- If either party to the marriage did not consent to it due to for example they were under duress, there was a fundamental mistake, unsoundness of mind such that they were incapable of giving consent or another reason (such as being under the influence of drugs)
- If one of the parties, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from a mental disorder
- If one party did not know that the other party had an acquired gender under the Gender Recognition Act at the time of the marriage
The marriage will be treated as if it had existed up until a decree of nullity is granted.
What about finances?
Whilst an annulment might void a marriage, what it does not achieve is financial separation. Upon a claim for annulment, the parties have potential claims against each other’s capital, income and pension provisions. The right to bring these claims will not automatically come to an end when the marriage is annulled. The claims that are available effectively mirror those available on divorce.
In the same way as following divorce, it is advisable to formally bring your financial relationship to an end by way of a court order also known as a financial remedy order. Without such an order, the ‘door’ to a financial claim is left open. This can usually be achieved by agreement, whereby the terms of the financial settlement are incorporated into a consent order. This is then submitted to the court for approval. Once approved and sealed the terms of the consent order become binding and final – the potential financial claims are dismissed or otherwise dealt with.
If an agreement cannot be reached, then an application to the court can be made for financial orders on annulment, however this is usually the last resort.