What is the Difference Between Annulment & Divorce?
Married couples who decide to officially separate will normally get a divorce. However, it is sometimes possible to get an annulment of marriage instead.
But what exactly does annulment mean, under what circumstances is it possible, and what is the difference between annulment & divorce?
What is an annulment of marriage and can you get one in the UK?
Annulment of marriage, also known as 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.
Annulment is possible in England and Wales under specific circumstances (see below).
It 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 purposes of this blog, we will consider annulment in England and Wales.
What qualifies a marriage for annulment?
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 (i) never legally valid or is (ii) voidable:
(i) Never legally valid (void)
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)
- Either spouse had a sexually transmitted disease 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
NB: 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.
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 £550).
The other spouse person 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.
What happens if your marriage annulment is not granted?
If the criteria for getting a marriage annulled are not met, the court will reject the application. In this scenario, it will be necessary to get divorced in order to officially end the marriage.
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