Written by Colin Steffler
In Ontario, there are two ways to legally end a marriage: divorce or annulment. While both have the same practical result (the marriage is ended), there are significant differences. While some of these differences are rather technical, they stem from a fairly simple point: a divorce ends a valid marriage, while an annulment ends a marriage that was void or voidable (i.e. invalid) from its beginning. Whether a marriage is valid has nothing to do with the length of the marriage. A marriage that is only days old may not satisfy any grounds for annulment, while a years-long marriage may remain void or voidable, if there was some legal inability for one of the spouses to enter into the marriage.
For spouses to obtain a divorce, they have to have a valid marriage, meaning that all of the circumstances of their marriage ceremony were in compliance with federal and provincial law. To be entitled to a divorce, the spouses must establish that there has been a breakdown of the marriage through evidence that:
- they have lived separate and apart from one another for at least one year prior to the divorce;
- one of the spouses has committed adultery, which has not been condoned or forgiven by the other; or
- one of the spouses has treated the other with such physical or mental cruelty as to make their continued cohabitation intolerable.
When the divorce is granted, the marriage is ended as of the date that the divorce order takes effect (normally 31 days from the date of the order).
Whereas spouses seeking a divorce must show that their valid marriage has broken down, a spouse seeking an annulment must show that their marriage was invalid for one of the following reasons:
- one of the spouses was already married to another person at the time of the wedding;
- the spouses fall within “prohibited degrees of consanguinity or affinity”;
- one of the spouses lacked the mental capacity to marry;
- one of the spouses was underage and lacked parental consent;
- the marriage was entered into under fraud, duress, or mistake; or
- the marriage could not be consummated.
As bigamy and polygamy are prohibited in Canada, a marriage is not valid if one of the spouses was still married to someone else at the time of the marriage ceremony. If one of the spouses was married previously, that marriage must have been ended by annulment, divorce, or death. This issue may arise unexpectedly where the previously-married spouse obtained a religious annulment or divorce, without taking steps to end the marriage legally. In such a case, it may come as a surprise to both spouses that the prior marriage was not terminated.
Close Relation by Blood or Adoption
Under Canada’s Marriage (Prohibited Degrees) Act, people who are closely related are not permitted to marry. Specifically, the Act prohibits marriages between siblings (including half-siblings) and individuals who are related lineally (e.g. parent-child, grandparent-grandchild, etc.), whether they are related by blood or adoption.
In order to have the mental capacity to marry, an individual must be “capable of understanding the nature of the relationship and the obligations and responsibilities it involves”, and under Ontario’s Marriage Act it is prohibited to issue a marriage license to or solemnize the marriage of any person who “lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.” Questions of mental capacity to marry may arise in cases involving predatory marriages, where the marriage is used by one spouse as a means to gain control over the other (often elderly) spouse’s property.
In accordance with Ontario’s Marriage Act, individuals wishing to marry must be over the age of majority (18), or must be at least 16 years old and have written consent from both parents.
Fraud, Duress, or Mistake
As Mendes D Costa J. explained in S. (A.) v (S. (A.) 1988 ONUFC, “A valid marriage is grounded upon the consent of each party. Oppression may vitiate consent and, if there is no consent, there is no valid marriage.” Such “oppression” may take various forms, including fear, persuasion, or social pressure, and, although it does not require any violence or threat of violence to constitute duress, it must be of such a level as to override free will and prevent any “real, understanding and voluntary consent”.
Consent may also be vitiated by fraud or mistake. In some instances, this may result from cultural and religious differences. There have, for example, been a number of cases in which annulments were granted after individuals accustomed to a two-part marriage process, involving a betrothal/engagement ceremony followed by a wedding ceremony, discovered they were married after going through what they thought was only the first part of this process.
While it may seem somewhat archaic, nonconsummation of the marriage (i.e. an inability to engage in sexual intercourse) remains a ground for annulment, and is, in fact, the most common ground relied upon in Ontario. However, the legal tests involved impose a high threshold. To be entitled to an annulment, it must be shown not just that the marriage was not consummated, but that it could not be consummated. More specifically, it must be established that:
- the incapacity to engage in sexual relations existed at the time of marriage and was unknown to the spouse seeking the annulment;
- the incapacity is the result of a “structural defect of a physical nature” or a psychological condition “that creates in the mind of a spouse an aversion, an invincible repugnance to the physical act of consummation, resulting in a paralysis of the will”;
- the incapacity is “such as to render complete intercourse impracticable”; and
- the incapacity is incurable.
In the past, courts often required medical evidence regarding the physical or mental condition resulting in the incapacity, and its incurability, but this requirement has generally been relaxed. Nonetheless, it remains clear that a mere unwillingness to engage in sexual relations is not sufficient, there must be some genuine inability that was previously unknown to the spouse seeking the annulment.
Consequences of Annulment – Property and Support
As noted above, a divorce ends a valid marriage as of the time the divorce is granted. In contrast, an annulment essentially declares that there never was a valid marriage, and, as such, the marriage is void ab initio (from the beginning). Despite this difference, “spouse” is defined under section 1(1) of the Family Law Act as including both married persons, and individuals who have “entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.” In other words, even if the marriage was for some reason invalid, such that it can be annulled, the person seeking the annulment may still be entitled to seek spousal support and an equalization of net family properties, as long as he or she was unaware of the reason for the invalidity (e.g. the other spouse’s prior existing marriage or impotence) at the time of the wedding.
Since spouses are not required to have been separated for any specified time prior to seeking an annulment, as they are if they are seeking a divorce based on separation, one might assume that it would be faster to obtain an annulment than a divorce. However, in recent decades, divorce procedure has been greatly simplified, such that the evidentiary requirements are fairly minimal and the process usually does not require the spouses to appear before a judge. On the other hand, someone seeking an annulment must satisfy complex legal tests based on highly case-specific facts, which may be disputed by the other spouse, and the annulment cannot be sought through the simplified procedures available for a simple or joint divorce. For this reason, as it has become easier for spouses to get divorced, annulments have become increasingly rare.
 Banton v Banton, 1998 CanLII 14926 (ONSC)
 Khan v Mansour, 1989 CanLII 4341 (ONUFC).