Alternatives to Divorce (3:VII)

From Clicklaw Wikibooks

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).

The difference between a void and voidable marriage is less important in matrimonial proceedings in British Columbia than it once was, as the FRA s 95(2) makes no distinction between the two and Part 5 of the Act applies to both. The FLA ss 21-22 also do not make any distinction. For purposes other than the FRA/FLA, the distinction may still be relevant.

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 56 of the FRA and s 21 of the FLA, the matrimonial regime still applies in this situation.

B. Judicial Separation

The Court can no longer grant a judicial separation. Judicial separation was formerly used to sever the legal obligations and liabilities between a married couple without terminating the marriage, when a spouse’s religion forbade divorce.

© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.

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