Should I Get A Divorce Or An Annulment?

Daniel Romano, BCL, LL.B., MA
We hear this question from time to time, and it is important to understand the difference between a divorce and an annulment of marriage because the effects of each can have drastically different consequences.

Before we can answer this, let us be clear about what constitutes a “marriage.” A marriage is contract between two people and their community whereby explicit and implicit rights, obligations and privileges are acquired.

The contract includes the community because when you get married, you do so in accordance to the laws of whatever jurisdiction is sanctifying the process, and that jurisdiction will impose a variety of rights and obligations such as fidelity, respect, mutual support, co-residency, inheritance rights, joint property and income, care in case of incapacity, and shared family patrimony.

When you obtain a divorce, the applicable court is putting an end to this contract, officially declaring the separation of assets and making orders for continued financial support for one of the spouses and/or the children to compensate for losses resulting from the breakdown of the marriage and to ensure the best interests of the children.

Our attorney colleagues who practice business law will confirm that dissolving a corporation or a commercial partnership can sometimes be very similar. In the business world, a divorce is the rough equivalent of a “resiliation of contract”. The contract ceases to exist, but only for the future.

An annulment is very different because rather than ending the marriage, it attempts to establish that the marriage never occurred. In the business world, this would be the rough equivalent of a “resolution of contract,” meaning that the contract never existed and the parties are bound to restore to the other whatever was obtained as part of the contract.

Since the marriage contract was void, gifts and property exchanges are returned and there is no lingering obligation of spousal support. In Quebec and the rest of Canada, child support would be unaffected because a child’s rights are paramount regardless of the circumstances of birth.

The concept of annulment was greatly developed in those countries that were governed by the Canonical Law of the Catholic Church. Since you cannot divorce in Catholicism, the only solution for those for whom a marriage was not working out was to declare that the marriage itself was void for some reason and therefore never occurred.

The conditions for obtaining an annulment are a good deal more demanding than for a divorce. The most common reasons cited in modern courts is that there was bad faith on the part of one or both of the parties.

Examples would be a marriage purely for immigration purposes or with the intent of taking financial advantage of the other party. In the past, it was more a matter of political power and expediency. When Pope Clement VII did not grant to King Henry VIII an annulment of his marriage to Catherine of Aragon so that he could marry Anne Boleyn, the King broke away from the Roman Catholic Church, declaring himself Supreme Head of the Church of England, and forever changed the course of Western history.

As fortune would have it, Anne Boleyn was also unable to produce a male heir for Mr. King, so after three years, rather than divorcing or annulling the marriage, Henry simply had her beheaded. Needless to say, this last of the three options is greatly frowned upon.