Annulments are rare in Alberta as they depend on specific legal grounds being satisfied to make a marriage invalid. These grounds can be challenging to prove in many cases.
Once an annulment has been granted, it means the marriage never existed. If you think you may have grounds for an annulment, it’s important to seek legal advice on how you can start the necessary court processes through the Alberta legal system.
What is an annulment?
A Nullity Decree is an order issued by Alberta courts declaring that a marriage did not exist or was invalid.
An annulment will only be granted once the court is satisfied that there are legal grounds to do so. It will then treat the marriage as void or voidable and, once formalized, the annulment means that no legal marriage ever even took place.
For a marriage to proceed in Alberta, certain legal conditions must be met. An annulment is often requested when one or more of these legal conditions can be shown to have been violated by one of the parties.
Either party in the marriage can request an annulment with or without the consent of the other party, If the court receives evidence of a violation of a condition, trust or promise that the marriage was based upon, it may open the way to the marriage being voided and annulled.
How is an annulment different than a separation or divorce?
With an annulment, the marriage effectively never exited from a legal standpoint. A divorce, however, legally ends a valid marriage.
Whether a couple separates or divorces, the legal validity of the marriage or adult interdependent partnership is not in question. They simply choose to cease living as a married couple and divorce legally ends the relationship.
Both annulments and divorces require a judge to sign a court order before the partners are legally free of their legal commitments to each other as a married couple. Typically, if there is no appeal of the decision after 30 days, the order becomes legally binding,
On what grounds can you obtain an annulment in Alberta?
To obtain an annulment, you must be able to prove that the marriage was invalid in the first place. This could be due to one or more of the following reasons:
- The marriage involved a person who was already legally married to someone else
- The partners in the marriage are too closely related
- The marriage only happened because of physical threats made (forced consent)
- Extreme impairment by drugs or alcohol deprived one or both partners of the ability to consent
- One of the partners was under 18 and did not have parental consent
- Mistaken identity of one of the married partners
- Inability to consummate the marriage (but NOT the inability to have children)
How do you get an annulment in Alberta?
To obtain a Nullity Decree, you must apply to the court with enough evidence to prove that the marriage should never have taken place.
This usually requires the assistance of a qualified family lawyer who understands the grounds, procedures, and evidence required to support an annulment application.
Some grounds for annulment are challenging to prove (e.g., that a person was forced into the marriage) while others (too closely related or married to someone else) are much easier to find corroborating evidence for in the form of official documentation.
Annulment requests are more likely to be successful if the couple no longer lives together. By continuing to live under the same roof, the court may find that the couple has agreed to continue the marriage and will waive or disregard the annulment request.
What is a religious annulment?
Some religions consider divorce by a married couple to be unacceptable. This may drive the couple to seek an annulment of the marriage rather than a divorce if the relationship breaks down.
However, a broken relationship does not constitute legal grounds for an annulment in Alberta like it is for a divorce. Therefore, a legal annulment will not be granted.
An annulment from a religious leader may, however, be possible. A religious annulment can pave the way toward remarriage if the couple also gets a legal divorce in the standard way through the Alberta courts.
If you want to remarry after a divorce but your religion forbids it, speak to your religious leader about a religious annulment.
Do children affect annulment decisions in Alberta?
If the legal grounds for annulment are satisfied, the presence of children from the relationship may not have a big bearing on the judge’s decision.
However, if the marriage is considered voidable and an annulment granted, the children from the voided marriage are not considered “illegitimate.” They are treated as the rightful and lawful children of the marriage even after the Nullity Decree has been granted if the following two conditions are met:
- The marriage was registered in accordance with the law, and
- At least one of the parties believed it was a valid marriage
What happens with support, custody, and property division after an annulment?
During a divorce, the matters of custody, parenting, support, and property division inevitably come to the fore when a couple is discussing how to go their separate ways.
Because an annulment means the marriage never existed, fewer legal frameworks are in place to decide how these matters are settled.
Often, then, the courts will order financial support and custody orders for the children of a marriage at the time the annulment is granted.
Financial support for the spouse and an order for the distribution of property amongst spouses may also be issued, provided no evidence suggests that the recipient was aware (or should have been aware) that the marriage was invalid at the time it happened.
How long after a wedding can you get an annulment?
An annulment can occur at any time after a marriage in Alberta. In most cases, it is best to apply sooner rather than later, as waiting may suggest acceptance that the marriage is valid. This is another difference from a divorce, where a couple must have been married for at least a year.
If you live in the Calgary area and are considering an annulment, the experienced family lawyers at Jennings Family Law can help you. Book a confidential case evaluation to discuss your legal rights, responsibilities, and options.