There are various routes to ending a marriage or civil partnership. The most common method is by way of a divorce or the dissolution of a civil partnership.
However, in certain circumstances, divorce or dissolution will not be appropriate. Where this is the case, annulment or judicial separation may be considered.
What is an annulment?
An annulment is a declaration from the court stating that a marriage is null and void and is also described as nullity proceedings.
There are two grounds for seeking an annulment:
- The marriage is void.
- The marriage is voidable.
What constitutes a void marriage?
A void marriage is one that was not entered into validly in accordance with legal requirements.
For a marriage to be legally valid in England and Wales, the following factors must be satisfied: -
- Both spouses must be aged sixteen or over on the date of the marriage;
- The spouses must not be within a prohibited degree of relationship (i.e too closely related); and,
- Both spouses must not already be lawfully married, or in a civil partnership, with another person at the time of the marriage.
- The formalities of marriage must not have been disregarded.
If any of the above factors are not satisfied, a marriage will be void and either party to the marriage could seek an annulment.
What constitutes a voidable marriage?
For a marriage to become voidable, one of the circumstances listed below must have occurred: -
- The marriage has not been consummated since the wedding (this only applies to opposite sex couples);
- Either party did not properly consent to the marriage (this factor will apply in situations involving duress, mistake or unsoundness of mind);
- At the time of the marriage, either party was suffering from a mental health disorder of such a kind or such an extent as to be unfit for marriage;
- One party had a sexually transmitted disease at the date of the marriage;
- Either spouse was pregnant by someone else at the date of the marriage;
- Either spouse is in the process of transitioning to a different gender.
Where any of the above circumstances apply, either party to the marriage could seek an annulment.
Please note, the grounds for seeking the annulment of a civil partnership differ slightly. Please contact us if you would like further details.
Non-marriages or non-civil partnerships
There are circumstances where a marriage or civil partnership may be described as a “non-marriage” or “non-civil partnership”, this is where there was a non-qualifying ceremony. For a valid marriage to take place in England and Wales it must comply with the requirements of the Marriage Act 1949. A marriage that has taken place overseas will generally be recognised as valid in England and Wales provided the marriage or civil partnership was valid in the country/ jurisdiction it took place. If the marriage/ civil partnership isn’t valid that it is not possible to pursue a financial claim in England and Wales.
Annulment versus divorce
A divorce, or the dissolution of a civil partnership, is the route by which most marriages are brought to an end. The process for obtaining a divorce or dissolution was recently reformed and a ‘no-fault’ system has been implemented. Ultimately, the party (or parties as it is now possible to make a joint application) seeking the divorce must state that their marriage has broken down irretrievably. In most cases, the applicant will then be able to apply for a conditional order, and following this, a final order which will bring the marriage to an end. Either party may instigate financial remedy proceedings at any stage following the grant of the conditional order.
Annulments differ to a divorce or the dissolution of a civil partnership in a number of ways. Primarily, parties to a marriage/ civil partnership should only seek a divorce or dissolution where their marriage or civil partnership is legally valid. In contrast, seeking an annulment is the appropriate route to end a marriage or civil partnership which is void or voidable. Secondly, you can apply for an annulment any time after your marriage. There is no requirement to wait until one year has passed as there is with divorce or dissolution.
There is one key similarity in seeking an annulment versus seeking a divorce or dissolution; following either, one can apply to the court for a financial remedy and pursue a financial settlement in the same manner. This means that the court may make orders for financial provision, pension sharing, property adjustment orders and more following the grant of a decree of nullity.
Annulment versus Judicial Separation
Judicial separation is a process by which marital obligations are brought to an end. Importantly, and unlike with divorce, dissolution or annulment, getting a judicial separation will not end your marriage. Despite this, it will have important ramifications. Notably, if either party to the marriage dies intestate following judicial separation, their assets will be administered as if their spouse had also deceased. Moreover, following judicial separation, either party can also apply to the Court for financial orders. It is important to note, however, that pension sharing orders cannot be awarded following judicial separation, nor can a clean break be ordered.
Like annulment, parties can seek a judicial separation straight after their marriage without waiting for a year to pass. It is due to this that judicial separation has at times been seen as the step before divorce.
Getting an annulment
To get an annulment in England and Wales, you must complete the relevant application form and file two copies of this with the court (or instruct a solicitor to do so on your behalf). A court fee will be payable on filing. The responding party should then file an acknowledgement of service in response, within fourteen days from the date on which they are served with the application. In which, they will indicate whether they intend to defence the petition for the decree of nullity or not. Once they have responded, you can apply for a conditional order, which will confirm that the court agrees that the marriage can be annulled. Six weeks after the conditional order is granted, you can apply for a final order which will state that your marriage has been annulled. Where the marriage was void, the decree of nullity will confirm that you were never legally married. Where your marriage was voidable, the decree of nullity will confirm that you are no longer married.
How long does the annulment process take?
The timescale for seeking an annulment may vary. Typically, the process is much quicker than seeking a divorce or dissolution but may be longer if the petition for the decree of nullity is defended by a party to the marriage/ civil partnership.
Should you require advice on seeking an annulment, please contact a member of our Family team.
