Marriage Annulment v Divorce: What’s the Difference?

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Marriage Annulment v Divorce: What’s the Difference?

24 December 2020

Family Law specialist, Amanda Wilson explains the difference between a marriage annulment and divorce and the implications of each of the proceedings.
 

What is an annulment?

There is one major difference between a divorce and an annulment of marriage.  A divorce brings to an end a legally valid marriage whilst an annulment formally declares a marriage to have been invalid.
Most marriages are legally valid and for this reason divorce proceedings are far more common than proceedings for nullity.  It is only possible to annul a marriage if the marriage was either void or voidable.
 

What is a void marriage?

A void marriage is one that has never existed.  The situations in which marriages are void are set out in Section 11 of the Matrimonial Causes Act 1973.  A marriage may be void if:-
  • You and your spouse are within the prohibited degrees of relationship i.e. 
  • One or both of you were under 16 at the time of the marriage;
  • One of you was already married or in a civil partnership.
  • In the case of a polygamous marriage (one where one spouse was already married to someone else at the date of the marriage) entered into outside England & Wales, that at the time of the marriage either party was domiciled in England & Wales.
 

What is a voidable marriage?

A voidable marriage is one that was legally valid but is defective.  It will be legally valid until it is annulled.  The situations in which a marriage may be voidable are set out in Section 12 of the Matrimonial Causes Act 1973.  A marriage may be voidable if:-
 
  • It has never been consummated owing to the incapacity of either party to consummate it (this does not apply to same sex couples);
  • It has never been consummated owing to the wilful refusal of the respondent to consummate it (this does not apply to same sex couples);
  • Either party to the marriage did not properly consent to it either as a result of duress, mistake, unsoundness of mind or otherwise
  • At the time of the marriage either party, although capable of giving a valid consent to the marriage, was suffering from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfit for marriage;
  • Your spouse had a sexually transmitted disease at the time of the marriage;
  • Your spouse was pregnant with someone else’s child at the time of the marriage;
  • The gender of one spouse changes following the marriage.
  • The respondent’s gender at the time of marriage had become the acquired gender under the Gender Recognition Act 2004.
 

What are the grounds for divorce?

There is in fact only one ground for divorce which is irretrievable breakdown of marriage.  In order to provide irretrievable breakdown of marriage it is necessary to prove at least one of the following facts:-
  • Your spouse has committed adultery and you find it intolerable to live with him or her;
  • Your spouse has behaved in such a way that you can no longer be expected to live with him or her;
  • Your spouse has deserted you for a continuous period of more than 2 years;
  • You and your spouse have lived separately and apart for a continuous period of more than 2 years and your spouse consents to a decree of divorce being granted;
  • You and your spouse have lived separately and apart for a continuous period of more than 5 years.
 

How do the proceedings for divorce and annulment differ?

Proceedings for an annulment can be brought at any time.  Divorce proceedings can only be brought after the parties have been married for at least one year.  However, proceedings for annulment are generally more expensive than divorce proceedings.  Undefended divorce proceedings use a “special procedure” which means that the divorce is dealt with by way of a paper process and no court hearings are necessary.  However, proceedings for annulment always involve a court hearing.
In cases of voidable marriages, there may be a choice of bringing divorce proceedings or nullity proceedings.  Although divorce proceedings are more straightforward there are sometimes religious or other reasons for pursuing an annulment of marriage.
 

How does any financial settlement differ?

If a marriage is found to be void then it never existed.  In such circumstances, it is unlikely that either party will be able to claim financial relief from the other under the Matrimonial Causes Act 1973 although claims can still be made in respect of children.  Claims can also be made under the Trusts of Land and Appointment of Trustees Act 1996.  If the marriage is found to have been voidable then it will have existed up until the decree of nullity and it will be possible to make claims for financial relief under the Matrimonial Causes Act 1973.  Parties in divorce proceedings can always make an application for financial relief.
 
For further advice on divorce or separation and other Family Law issues, please contact Amanda Wilson or another member of our experienced Family Law Team for advice on your individual circumstances.
 
Girlings has offices in AshfordCanterbury and Herne Bay.

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