To discuss any aspect of Divorce and Family Law, our Family Law Team is available on 01225 462871. Alternatively, you can contact them by email.
Difference between annulment and divorce
Unlike a divorce, which brings a marriage to an end, an annulment is a declaration by the court that the marriage was either not legally valid or had subsequently become legally invalid. Put simply, if the court grants an annulment, the marriage can be treated by both parties as if it had never taken place.
An annulment can be applied for at any time, whereas a divorce cannot be applied for during the first year of marriage. However, the longer the period before an annulment is sought, the greater the chance the delay will have to be explained.
Please note that the rules for dissolving a civil partnership are slightly different, although the same court forms are used.
When you can annul a marriage?
An annulment will only be granted if:
- You or your spouse 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; and
- The marriage was either never legally valid (‘void’), or was legally valid, but satisfies one of the reasons making it ‘voidable’.
What is a void marriage?
A void marriage means that you were never legally married in the first place. Despite that, there are some situations – for example, if you wish to get married again – where a ‘decree of nullity’ may be required to prove you are not married.
Examples of marriages that would be void include where:
- the couple are too closely related;
- one or both parties were under 16;
- one or both parties was already married or in a civil partnership with somebody else.
What is a voidable marriage?
If the marriage took place after 31 July 1971, it is voidable if one of the grounds set out in Section 12 of the Matrimonial Causes Act 1973 is satisfied, namely:
- that the marriage has not been consummated owing to the incapacity of either party to consummate it*;
- that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it*;
- that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
- that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
- that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
- that at the time of the marriage the respondent was pregnant by some person other than the petitioner.
- that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage;
- that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.
[* Does not apply to the marriage of a same sex couple.]
A voidable marriage legally exists until such time as a decree of nullity is granted.