August 7, 2023 | Divorce

Divorce vs. Annulment

Have you ever wondered what was the difference between a divorce and an annulment of marriage? We’ve all heard of a Hollywood annulment from getting married drunk in Las Vegas. How does being inebriated annul a marriage and are there any other circumstances where an annulment can be applied instead of a divorce?

What Constitutes A Valid Marriage?

Before running through the annulment conditions, let’s dive into the conditions of a valid marriage.

It has to be public

Having your wedding in front of all your friends and family is not per say a condition, however, it needs to be contracted openly, with the presence of two witnesses, and in front of a competent officiant. The officiant needs to be designated by the Minister of Justice, which includes but is not limited to a Superior Court clerk, a notary or a minister of religion.

The notice must be published in the registrar of civil status for 20 days before the marriage date, subject to authorized dispensation.

The goal of making it public is to allow any interested person to oppose their union for a reason that would make the marriage invalid. For example, the groom is already married in another country, or a bride is being forced to marry by her parents, in the context of an arranged marriage.

Confirmation of identity and intentions

Before solemnizing the marriage, the officiant confirms the identity of both parties and asserts that they do not have a previous bond of marriage or civil union, except if the civil union is between them already. In the case of a minor getting married, the officiant confirms that it was authorized by the court.

Rights and duties of spouses

The officiant then reads the rights and duties to each spouse, namely articles 392 to 396 of the Civil Code of Quebec, which includes the typical promise of respect, fidelity, succour and assistance to each other.

“I do”, each says. Those words confirm their consent.

“I now pronounce you married” the officiant says.

Ta da! We have a marriage.

 What Are The Conditions For An Annulment?

 An annulment can be sought for when a marriage failed to respect the proper conditions, i.e. it is in breach of one of the conditions stated above. Any interested person can bring up the reason for nullity within a delay of 3 years after the time of marriage, and the court can rule on it according to the circumstances. Therefore, having a secret marriage, or having an officiant not competent to act, or being already married/in civil union to someone else can all be grounds for an annulment.

If public order is in question, there can be exceptions to the delay. If a young woman felt obliged to get married because it was her parent’s wishes, and threatened to be disowned, then her consent was not free and enlightened. The same goes for a man with severe mental illness who did not understand what the significance of marriage actually meant, then his consent was not enlightened because he is not able to fully exercise his civil rights. Being under the influence of alcohol or another type of drug could also alter our ability to make enlightened decisions. Being married to a close relative or being a minor who did not have court authorization are also against public order and would constitute grounds for an annulment.

The Difference With A Divorce

 Spouses who seek legal separation, but had a completely valid marriage in form, have no choice but to take the divorce route. The divorce, however, also has conditions in order to be permissible. If a spouse committed adultery or has treated the other with physical or mental cruelty, then a divorce can be granted. Otherwise, spouses must live separate and apart for at least one year before asking for a divorce, with certain exceptions. This is in place to prevent premature divorces. Many times, spouses revendate a divorce in the heat of a difficult moment, but will get back together after the dust of a disagreement or hard path settles.

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