The Difference Between Annulment and Divorce
The Difference Between Annulment and Divorce.
When a Marriage Dissolves, Does it Really Matter How?
It is a difficult topic at any time of the year, but perhaps never more so than during the holiday season. If you have been thinking about the dissolution of your marriage and have some questions about the process, that is understandable. For some, the question is not as simple as a “should I or shouldn’t I?” Rather, the question of whether you should seek an annulment of the marriage or a divorce. There are some key differences, and if you are asking yourself, “does it really matter how?” you might want to continue reading.
Obtaining a divorce is a legal process that requires, speaking frankly, a significant amount of paperwork, but it is also a process that will clearly outline your responsibilities and obligations under the law. There are two types of divorce; uncontested and contested. While every situation is unique, we will discuss a broad overview of the two. If your marriage is ending, we encourage you to book a consultation with a member of the Foote Law team to explore your options and obligations fully.
Uncontested divorce: This applies when both you and your spouse agree that a divorce is necessary, have discussed and agreed upon the parenting issues relating to your child or children; child support and other children’s expenses; the equalization process and spousal support. If all of these have been agreed upon and incorporated into an agreement that has been signed and witnessed, the next step is simple. You will then need to complete the Application for Divorce and follow the various steps set out by the Court to complete the divorce.
Contested divorce: As the name suggests, a divorce which is contested means there are significant disparities between each of the parties’ positions. These may pertain to parenting issues, equalization, and support. Part of this process may involve motions where you must attend court, and/or a trial may even be required to determine contentious matters. A contested divorce begins once an Application has been filed. To learn more about this process, reach out to a member of the Foote Law team.
We will start by clearing up a misconception that is often perpetuated through the movies and/or by misinformed persons on social media. That is, when a religious organization grants an annulment, it is considered a legally binding decision by the Ontario courts. Simply put, an annulment is not valid under current Canadian law. Perhaps one partner might also believe that an annulment absolves them of any legal responsibility to pay child and/or spousal support or to go through the process of equalization appropriately. Neither is accurate, and you will still be required to meet any legal obligations in these areas.
Granting an annulment is, in fact, quite rare in the Province of Ontario, and a very specific set of criteria is typically expected to be met. This includes:
- Non-consummation of the marriage through sexual intercourse*
- One spouse is already legally married to someone else
- A marriage was undertaken under duress or when one partner lacked the mental capacity to understand the concept of marriage.
- Intoxication and inability to provide consent during the marriage ceremony
- Where one partner was under the age of 18 and married without parental consent
- Where the partners are too closely related by blood or adoption
Why the Choice You Make Matters
Either situation presents some difficulties, emotionally as well as with respect to legal matters. An annulment will essentially result in a finding that the marriage never existed, kind of like turning back time and restoring you to a time and place where the marriage never occurred. While this won’t impact the legal status of any children that resulted from the marriage, it can certainly be fraught with unintended emotional consequences. As well, both options will require an investment; in other words, one is not necessarily cheaper than the other if you might be looking for ways to reduce your costs. It is also true that one option is not necessarily “faster” or “easier” than any other.
Ultimately, the choice you make during this challenging time matter most when it comes to your future and the future of any children arising from the marriage. You will want to ensure that you are legally protected, and that parenting and support agreements are legally binding. Also, you will want to ensure that have met the appropriate steps required for a full and legal dissolution of the marriage so that in the event you wish to enter into another relationship/marriage; you are legally free to do so. It is a complicated topic, but we can help to clarify the issues for you. Book a consultation with Foote Law to discuss your options and what makes sense for you and your family.
*There are further specific rules related to this caveat which the Foote Law team can discuss during an appointment if you want to learn more.