Annulment vs Divorce in British Columbia

Ending a marriage is never easy. When a marriage breaks down, it gives rise to complex emotional and financial issues. 

Another major issue: how do you end your marriage? Can you annul a marriage in Canada? Is annulment the same as divorce?

This article will explain the differences between annulment and divorce, the criteria to qualify for annulment vs divorce, and how the process works for each option.

What is the difference between an annulment and a divorce in Canada?

In British Columbia, there are two ways to legally end a marriage: divorce and annulment.

A divorce ends a legally valid marriage, while an annulment ends a legally invalid marriage. A legally invalid marriage is one that is “void” or “voidable” from the beginning because of a legal defect or problem that existed when the marriage occurred. When a legal annulment is granted, it means that the marriage never legally existed.

While both divorce and annulment legally end a marriage, there are significant differences between an annulment and a divorce, in terms of eligibility, legal process, and the potential impact on issues such as property division and spousal support. 

Are you eligible for an annulment in BC?

Annulments in BC are rare—but possible. That is because the legal grounds to qualify for an annulment are narrow and strictly applied. To be eligible for an annulment, you must be able to prove that your marriage was invalid for one of these reasons:

• one spouse was legally married to someone else at the time of the wedding ceremony and that first marriage had not been ended by annulment, divorce, or death of the first spouse (note on religious annulments: a religious annulment is not legally binding and is not sufficient to legally end a marriage);
• the spouses fall within prohibited degrees of “consanguinity, affinity or adoption” (Canadian law prohibits marriage between spouses who are too closely related to each other by blood or by adoption);
• one of the spouses was under the age of 16;
• one of the spouses was 16 or 17 years old and did not have written parental permission to marry;
• the marriage was entered into under fraud, fear, duress, or mistake to the extent that the spouse did not truly consent to the marriage (for example, one of the spouses was pressured or forced to marry against their will);
• one or both spouses was intoxicated during the wedding ceremony and not able to give consent;
• one spouse lacked the mental capacity to marry (in other words, one spouse was not capable of understanding the nature of marriage and the obligations and responsibilities it involves); 
• the marriage could not be consummated due to a physical inability or a mental condition that was not known at the time of the marriage—not simply because the couple chose not to have sexual intercourse; or
• there was a legal defect in the marriage ceremony itself (for example, the marriage celebrant did not have legal authority to perform a legal marriage ceremony). 

While many people think the length of the marriage is another way to qualify for an annulment, that is not true. Short marriages—if legal from the outset—are not eligible for annulment simply because they were short term, even if the marriage only lasted days or weeks before the spouses separated. If your marriage is legally valid, you must apply for a divorce to end it, regardless of the length of your marriage.

Are you eligible for a divorce in BC?

Divorce is the much more common option for ending a marriage. To be eligible for a divorce in BC: 

• you or your spouse must have been living in BC for one year or more and must still be living in BC when bring your divorce application; and
• you must establish breakdown of your marriage on one of three grounds: living separate and apart (a.k.a. no fault divorce); adultery by one spouse which has not been condoned or forgiven; or intolerable physical or mental cruelty by one spouse toward the other.

No fault divorces are the most common in Canada. Even if your spouse committed adultery or was abusive, it is typically easier and faster to rely on living separate and apart as the grounds for divorce. This is because adultery and cruelty must be proven by evidence in Court.

How long do you have to be separated before divorce in Canada? The answer is that one year of living separate and apart provides the grounds for divorce and allows you to avoid the necessity and expense of a trial to present evidence of cruelty or adultery.

How to get an annulment in BC

You must apply for a marriage annulment in the Supreme Court of BC. A hearing date will be set, and the petitioning spouse must present evidence to satisfy the Court that the marriage is invalid because one of the defects set out above existed when the marriage occurred.  

To get an annulment, you must satisfy complex legal tests applied to the particular circumstances of your marriage, which may be disputed by your spouse. Even if both spouses agree that the marriage is not legally valid, you can’t get an annulment in BC without an in-person Court hearing to prove the marriage was invalid.

If you intend to use the annulment process, you should (1) act quickly, because BC Courts place substantial weight on how long the petitioning spouse was married before beginning the annulment process; and (2) strongly consider hiring a family law attorney to assist you with the Court application process and represent you at the hearing.

How to get a divorce in BC

Given the strict legal tests and need for an in-person Supreme Court hearing, many people find it quicker and easier to apply for a divorce instead of an annulment. In the majority of cases, it’s simpler and less expensive to use the divorce process, even if you have reason to believe that your marriage is legally invalid.

Divorce proceedings have become greatly simplified over recent years. In many cases, spouses can get a divorce by filing the necessary divorce paperwork, without having to appear before a judge. See here for more on the legal process for an undefended divorce or “desk order divorce.” 

You can use alternative dispute resolution methods such as negotiation and mediation to resolve any issues arising from your marriage and its breakdown, and then apply for a desk order divorce without setting foot in a courtroom. 

Alternatively, you can use the contested divorce or “defended divorce” process, which means you will ask a judge to decide the disputed issues for you at trial if you aren’t able to come to an agreement on issues before the trial.

When the divorce order is granted, your marriage is legally ended on the date the divorce order takes effect, which is usually 31 days from the date of the divorce order.

Implications of annulment property division, spousal support, and child custody

An annulment declares that a marriage is void ab initio, which means there never was a valid marriage in the first place. If a marriage is annulled and never existed, does that mean the “spouse” was never a “spouse” and thus not entitled to make claims for property division, pension division, spousal support, or child support?

The answer to that question may surprise you. A person retains the right to make claims in certain circumstances under BC’s Family Law Act even if the marriage is annulled. The definition of “spouse” in section 3 of BC’s Family Law Act applies to common law spouses (couples who have lived together in a marriage-like relationship for at least two years).

So, if the petitioning spouse qualifies as spouse within the definition in section 3 of the Family Law Act and was not aware of the legal defect at the time of the marriage that made the marriage invalid, claims can be made for spousal support and to divide property and debts. Be aware that the law requires that such a claim be brought no later than two years after the order granting the marriage null. 

If the couple have children, child support and child custody are always viable claims whether the relationship ends by annulment or divorce. Child support is the right of the child, and that right is not affected by the marital status of the child’s parents. Suitable arrangements must be made for decision-making and parenting time with respect to any children of the relationship.

Get advice from an experienced family law attorney in BC

If your relationship has broken down and you want to explore your options for legally ending your marriage, reach out to Onyx Law Group’s team of family law attorneys. We have extensive experience in handling annulment and divorce. Our skilled lawyers will answer your questions, help determine which process you are eligible for, and guide you through the process to legally end your marriage. 

We can also assist you with resolving issues that arise from your relationship and its breakdown, including parenting matters, child support, spousal support, and division of family property and debt. Consult with us today by contacting (604) 256-1462 or submitting this form.