Annulment Vs Divorce – What’s The Difference?
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Married couples who decide to officially separate will normally get a divorce.
However, in the UK it is sometimes possible to get an annulment of marriage instead of a divorce.
Annulment is not a term used in Scotland although it is still possible to make a marriage void north of the border via a Nullity Petition. But for the purposes of this article we will only consider annulment in England & Wales.
But what exactly is an annulment of marriage, under what circumstances is it possible, and what’s the difference between an annulment and a divorce?
What is an annulment of marriage and can you get one in the UK?
Annulment of marriage, also known as a nullity, is essentially a declaration that a marriage is not legally valid. It has the effect of making a marriage null, effectively ending the marriage without the need for divorce.
Therefore, the effect of an annulment is that the marriage, so far as the law is concerned, becomes null and void.
There could however be possible unintended consequences to having a marriage annulled so you should consult with a family law solicitor before making any decisions regarding annulment.
An annulment of marriage could impact a spouse’s ability to get maintenance support from the other spouse or it could affect rights to any property acquired during the marriage for example.
Annulment is possible in England and Wales under specific circumstances (see below).
Can all marriages be annulled?
In order to get a marriage annulled in England or Wales, at least one spouse must have either lived in England or Wales for at least a year or had a permanent home in England or Wales for at least 6 months.
Furthermore, it must be demonstrated that the marriage was either (i) Void – Never legally valid or (ii) Voidable – Legally valid, but meets criteria that make it voidable.
Though these phrases sound very similar there is a key distinction between “void” and “voidable”. A void marriage is automatically eligible for an annulment simply because the marriage is based on an illegal act.
Whereas in a voidable marriage, the legal reasons for an annulment may exist, but they will not annul the marriage unless one of the spouses requests the annulment. The request for the annulment should then be supported by one of the reasons listed below.
(i) Void – Never legally valid
A marriage will be considered as never having been legally valid, and therefore void if any of the following are true:
- Either spouse was under 16 years old at the time of marriage
- Either spouse was already married or in a civil partnership at the time of the marriage
- The spouses are closely related*
A marriage will be considered voidable if any of the following are true:
- It has not been consummated (this does not apply for same-sex couples)
- Either party did not properly consent to the marriage (eg they were drunk or incapacitated)
- Either spouse had a sexually transmitted disease (STD) at the time of the marriage
- Either spouse was pregnant by someone else at the time of the marriage
- Either spouse is in the process of transitioning to a different gender (or had transitioned without the knowledge of their spouse prior to the marriage)
- Certain forms of mental illness make either spouse unable to live as part of a married couple
There is no time limit to apply for annulment of marriage on the grounds of being void. Applications on the grounds of being voidable should be made within three years of marriage.
*Prohibited degrees of relationship in the UK
The Prohibited Degrees of Relationships Act 1986 covers blood relatives (Consanguinity) and relationship by marriage (Affinity) and means that a person is unable to legally marry if they are related within the prohibited degrees to the intended spouse.
Specific blood relatives cannot legally marry. For example, marriages are not permitted between siblings (including a half-brother or half-sister), a parent and child or a grandparent or grandchild. Furthermore, you can’t marry a parent’s sibling or a sibling’s child.
The law regarding prohibited degrees of relationship also includes adopted children and their genetic parents & genetic grandparents, even if they do not know they are related. Adopted children also can not marry their adoptive parents.
It should be noted that this information is intended as a brief overview that is general in nature and does not intend to be definitive. If you are in any doubt as to whether your relationship falls within the prohibited degrees of relationship criteria you should seek legal advice.
Annulment vs Divorce
Applications for annulment of a marriage can be made at any time after the marriage. In contrast, applications for divorce cannot be made until at least a year after the marriage.
Unlike getting divorced, when applying for annulment there is no need to prove that there has been an ‘irretrievable breakdown’ of the relationship or to state any reasons (eg adultery, unreasonable behaviour etc). Instead, it is just necessary to prove that the marriage was never legally valid or voidable.
If a marriage is considered void, the court will not apply the same principles regarding the division of assets as in the case of divorce. In the case of a voidable marriage, financial relief may be claimed until the point of annulment.
How long does the annulment process take?
The total time to obtain an annulment of marriage will vary depending on the circumstances, but it will generally take several months.
The first step is for one spouse to submit a ‘nullity petition’ and pay the fee (currently £593).
The other spouse must respond to the nullity petition within 8 days, saying whether they agree to the annulment. If they contest the annulment, this can lead to long delays.
If they agree, the next step is to apply for the decree nisi, along with a statement of whether the marriage is ‘void’ or ‘voidable’. An application for the decree absolute can be made 6 weeks after the decree nisi has been obtained.
If the court agrees that the marriage is void or voidable, it will issue a decree absolute (also known as the decree of nullity), confirming that the marriage has been annulled.
Why would you get an annulment instead of a divorce?
If you wish to end a marriage there are two legal ways – divorce or annulment. Although most married couples choose divorce, an annulment can be a better option for one or both spouses under certain circumstances.
You may choose to get an annulment instead of a divorce because an annulment concedes that the marriage was void and is therefore wiped from all records as though it never existed.
So, because the annulment essentially acts as though the marriage never existed it can be a preferable option for some religious people who do not want to be considered divorced.
When seeking an annulment of marriage, it should however be noted that not all reasons for an annulment are as straightforward as they may appear. For instance, it can be difficult to prove a lack of consent or prove a marriage was unconsummated.
But proving that your marriage was void can also be very simple in some cases, by providing evidence like:
- A birth certificate proving that one spouse was underage
- A marriage certificate proving that one spouse was already married