Unlike a divorce, an annulment invalidates a marriage and the marriage is treated as if it never existed. However, an annulment is only available in very specific, limited circumstances.
This article considers the grounds for, and impacts of, an annulment. A recent decision of the Ontario Superior Court of Justice is also reviewed, in which a woman sought an annulment claiming that her husband misled her by marrying her solely to facilitate his immigration to Canada.
Grounds for obtaining an annulment
A person who was married can apply to the Supreme Court of British Columbia for an annulment. It may be granted by the Court in limited, specific circumstances, for example, where the person seeking the annulment can prove that:
- one spouse was already married to someone else,
- one spouse was under the age of consent (and did not have parental permission),
- the spouses are too closely related,
- one spouse forced the other to marry against their will,
- one spouse was incapable of physically consummating the marriage, or
- one spouse did not have the mental capacity to consent to the marriage.
In contrast, a divorce can be obtained in broader circumstances where the marriage has broken down and one of the following events has occurred:
- the spouses have lived separate and apart for at least one year,
- one spouse has engaged in adultery, or
- one spouse has been physically or mentally cruel.
Impacts of obtaining an annulment
An annulment, if granted, has the effect of treating the marriage as if it never existed. While this does not impact certain things, such as child support obligations or the determination of parenting issues, it may impact other claims. Even if it is deemed that the parties were never validly married, rights may still arise if the parties were common-law spouses under British Columbia family law.
Obtaining an annulment under Canadian law is different from obtaining an annulment under the rules of a religious organization. A religious annulment does not constitute a legal divorce or annulment.
Husband sought divorce and division of family property; wife sought annulment
In Singh v Rubina, a husband sought a divorce from the wife and division of family property. The main asset of concern was a half interest which his wife held in a rental property in Dawson Creek, British Columbia.
The wife opposed the grant of the divorce and instead asked the court for an annulment. She argued that her husband misled her by marrying her solely to assist in his immigration from India to Canada, claiming that he intended to divorce her after acquiring his immigration status. She also argued that her interest in the property was acquired before the marriage and therefore it was excluded from property division.
The wife sought to be reimbursed for gifts given by her and her family to the husband on the occasion of their wedding, in addition to expenses incurred in facilitating the husband’s immigration.
Parties were married in India but problems quickly emerged in Canada
The wife moved to Canada in 2015 as an international student and later acquired permanent residency and started working. She had known her husband since childhood. The parties’ parents had agreed to the marriage and in 2019, she returned to India for the wedding. After spending three weeks together in India and honeymooning in the Maldives, the wife returned to Canada. The husband joined later in the year after obtaining a work visa.
After cohabiting for a couple of months, problems in the relationship emerged and the husband moved out. After some attempts at reconciliation, the marriage was over.
Court refused to grant an annulment, issuing a divorce instead
Justice Milman explained that misrepresentation can justify an annulment, but only where it led to a mistake as to the identity of the other spouse or the nature of the ceremony:
“[E]ven if the other spouse entered into the marriage for immigration purposes, an annulment is not available as long as the spouse seeking it was aware of the identity of the other spouse and the nature of the ceremony.”
As such, his Honour refused to grant an annulment. Given that there was no possibility of reconciliation and the parties had lived apart for one year, the judge issued a divorce.
Husband not entitled to a share in the rental property; did not have to repay gifts
Since the wife acquired her interest in the rental property before the parties were married, it was excluded property under the Family Law Act and not subject to division.
Justice Milman explained that the test for resolving claims of unjust enrichment between spouses required the wife to show a deprivation at her expense, a gain to the husband, and the absence of an acceptable reason for the enrichment.
In relation to the immigration expenses, which the wife could prove, his Honour decided that the wife’s claim fell did not pass the third hurdle. The payments to support the immigration application were intended as gifts “forming part of the mutual support that the parties had committed to give one another as newlyweds in anticipation of a shared life together”. In response to the wife’s claim that the payments were made under false pretences, his Honour thought that the husband genuinely wanted to marry her and not just for immigration purposes.
Contact Meridian Law Group in Vancouver for Experienced Divorce and Annulment Advice
The experienced family lawyers at Meridian Law Group will advise you on the best approach for your specific circumstances and guide you through the process of obtaining a divorce or annulment. Our team will advise you of your options at every step of the process regardless of the legal forum, including negotiation, mediation, arbitration or trial.
Conveniently located in downtown Vancouver, the firm represents clients in Vancouver and throughout British Columbia. To schedule a consultation, please callus (604) 687-2277 or reach out to us online.
