Alternatives to Divorce (3:VII): Difference between revisions
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A marriage is void ''ab initio'' if: | A marriage is void ''ab initio'' if: | ||
#Either of the parties was, at the time of the marriage, still married to another party; | |||
#One of the parties did not consent to the marriage; | |||
#The parties are related within the bonds of consanguinity (descent from a common ancestor); or | |||
#The formal requirements imposed by provincial statute (such as the ''BC Marriage Act'') are not fulfilled. | |||
Misrepresentation is a ground for annulment only where the misrepresentation leads to a mistake about the identity of the other party or as to the nature of the marriage ceremony. | Misrepresentation is a ground for annulment only where the misrepresentation leads to a mistake about the identity of the other party or as to the nature of the marriage ceremony. | ||
A voidable marriage is valid until one of the parties to it obtains a declaration of nullity. The declaration must be obtained during the parties’ joint lives and is not available if the parties are already divorced. In Canada, a marriage may be voidable in the following circumstances: | A voidable marriage is valid until one of the parties to it obtains a declaration of nullity. The declaration must be obtained during the parties’ joint lives and is not available if the parties are already divorced. In Canada, a marriage may be voidable in the following circumstances: | ||
#Either party is impotent or otherwise unable to consummate the marriage (as opposed to unwilling to consummate the marriage, which may constitute cruelty but does not render the marriage voidable: see ''[https://canlii.ca/t/54b4 Juretic v Ruiz]'', 1999 BCCA 417); or | |||
#A party is under 14 years of age. | |||
These are common law rules. | These are common law rules. | ||
'''NOTE''': If a marriage is found to be void, this does not affect the property claims that a party might have. Pursuant to s | '''NOTE''': If a marriage is found to be void, this does not affect the property claims that a party might have. Pursuant to s 21 of the ''FLA'', the matrimonial regime still applies in this situation. | ||
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Revision as of 16:30, 10 November 2025
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 23, 2024. |
A. Annulment
An annulment differs conceptually from a divorce because a divorce terminates a legal status, whereas an annulment is a declaration that the parties’ marital status never properly existed. A declaration of nullity may be obtained for two types of marriages:
- Void marriages, which are null and void ab initio (from the outset); and
- Voidable marriages, which are valid until a court of competent jurisdiction grants a declaration of nullity (although such a declaration has the effect of invalidating the marriage from its beginning).
A marriage is void ab initio if:
- Either of the parties was, at the time of the marriage, still married to another party;
- One of the parties did not consent to the marriage;
- The parties are related within the bonds of consanguinity (descent from a common ancestor); or
- The formal requirements imposed by provincial statute (such as the BC Marriage Act) are not fulfilled.
Misrepresentation is a ground for annulment only where the misrepresentation leads to a mistake about the identity of the other party or as to the nature of the marriage ceremony. A voidable marriage is valid until one of the parties to it obtains a declaration of nullity. The declaration must be obtained during the parties’ joint lives and is not available if the parties are already divorced. In Canada, a marriage may be voidable in the following circumstances:
- Either party is impotent or otherwise unable to consummate the marriage (as opposed to unwilling to consummate the marriage, which may constitute cruelty but does not render the marriage voidable: see Juretic v Ruiz, 1999 BCCA 417); or
- A party is under 14 years of age.
These are common law rules.
NOTE: If a marriage is found to be void, this does not affect the property claims that a party might have. Pursuant to s 21 of the FLA, the matrimonial regime still applies in this situation.
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