Annulment or Divorce?
If you have reached the end, and don’t know which way to turn, you might be contemplating a divorce. But wait, is it a divorce you are looking for or can you obtain an annulment? Or should you go for an annulment instead of a divorce?
There has been interest recently in what constitutes adultery for a divorce, and particularly between same sex couples. What the reports usually fail to point out is that there is only one ground for divorce, that of irretrievable breakdown of marriage. It is established by reference to one of five facts – adultery, unreasonable behaviour, two years desertion, two years separation with consent or five years separation. Adultery as a fact is only available to heterosexual spouses, the legal definition of adultery requiring sexual intercourse between a man and a woman.
What is Annulment and why would I want one?
To annul a marriage is to decree that it is null and void. Annulment can be made where the court decides that a marriage is invalid. In contrast to a divorce, where a marriage is annulled, it is treated as though it never existed. However, the end result is that the parties are each then free to marry another person.
Can I claim financial relief on annulment of marriage?
Yes, the court has power to determine financial claims for capital, pension and maintenance in the same way as if the couple were divorcing. The court will also determine arrangements for the children if needed.
When can you annul a marriage?
Annulment is a way of ending a marriage, like divorce. Unlike divorce, you can get a marriage annulled at any time after the wedding (in a divorce, you have to wait at least a year). You may want an annulment if you have religious reasons for not wanting a divorce. However, you need to show that the marriage was either not valid in the first place, or is defective for one of the reasons given below.
You can annul a marriage if it was not legally valid in the first place, for example
•you are closely related
•one of you was under 16
•one of you was already married or in a civil partnership
You can annul a marriage if:
• it wasn’t consummated – you haven’t had sex with the person you married since the wedding. Although note that this does not apply for same sex couples.
• you didn’t properly consent to the marriage
• the other person had a sexually transmitted disease when you got married
• the woman was pregnant by another man when you got married
Marriages annulled for these reasons are known as ‘voidable’ marriages. Note that the rules on ending a civil partnership are slightly different.
How do I get an Annulment?
An annulment can be applied for at any time after the wedding. You do not need to wait 12 months as in the case of a divorce. To start proceedings you must file a nullity petition and pay the court fee (currently £410). If your spouse agrees (and they must respond within 8 days) then you can apply for a decree nisi. You must do so with a statement setting out the truth of your nullity petition. In the same way as with divorce, you must wait 6 weeks and a day before applying for decree absolute – the ‘decree of nullity’.
Do I have to go to Court?
This is where the procedure differs substantially from divorce. In divorce proceedings, there is a ‘special procedure’ where the court can deal with matters on paper alone. However, where you are applying for nullity, the court will require you to attend in open court for a hearing. The court will need to be satisfied as to the basis of the annulment and require personal affirmation.
I have a Will – is it affected?
In the same way as with divorce, any references to your spouse in a will lapse on annulment. It is always worth reviewing your existing Will or even making a Will on separation and in contemplation of divorce or annulment so that you can provide for your loved ones rather than rely on the intestacy rules.
It is not for everyone
The grounds for seeking an annulment are quite limited. They are not for everyone. Often it is suitable because of religious beliefs or as a result of rather limited circumstances in which the marriage came to be ‘celebrated’. If you think you might satisfy the criteria and want to seek annulment then it is wise to seek specialist family law advice to check your position. It is also important to consider the most appropriate forms of financial support and the options available to you in relation to any children of the relationship. A qualified family lawyer will be able to give you the best advice on these areas.
If any of the issues raised in this post affect you or someone close to you and you would like to discuss your options please do not hesitate to contact us at Paradigm Family Law on 0845 6020422 or email us at: [email protected]. Our family law experts, James Thornton and Frank Arndt are here to help. We offer fixed fees and a free initial consultation.