In a minority of cases, annulment may be available as an alternative to divorce.
An advantage of the process is that it can be applied for in the first year of marriage, whereas a divorce cannot. Annulment may also be a useful alternative for couples who have a religious or moral objection to divorce.
Before you can obtain an annulment, however, you must prove that your marriage is either void or voidable .
In England and Wales, there are five grounds to claim a marriage is void:
- the parties are close relatives who are prohibited from marrying each other (e.g., father and daughter or brother and sister);
- at the time of marriage, either party was under the age of 16;
- either party was already married;
- at the time of marriage, the parties were not respectively male and female;
- the marriage is a polygamous one that was entered into outside England and Wales while at least one of the parties was domiciled in England or Wales.
Where the court rules a marriage is void, it is treated as though it never even happened. You need to apply for and obtain a Nullity Decree from the court, however. This will allow you remarry and avoid any later disputes concerning the void marriage.
A marriage is voidable if:
- it has not been consummated due to incapacity of a party or wilful refusal;
- there was lack of consent to the marriage;
- either party was suffering from a mental disorder;
- an interim gender recognition certificate was issued to a party after the marriage;
- at the time of marriage, the Respondent was suffering from venereal disease;
- at the time of marriage, the Respondent was pregnant by someone other than the Petitioner.
Unlike void marriages, the law will treat a voidable marriage as having been valid to the date of annulment.
You should bear in mind that you will be barred from applying for nullity, however, if you knew that you could avoid your marriage through an annulment, but led your partner to believe that you would not do so.
When Can I Apply For Annulment?
For some of the categories of voidable marriages, nullity must be applied for within three years of the marriage. However, the court can always exercise its discretion to extend that period.
Will Annulment Have Any Effect On My Will?
Yes, as is the case on divorce, any gifts to your putative spouse will lapse after annulment.
If I Obtain An annulment, Will My Children Be Classed As Illegitimate?
Not necessarily. If you obtain a Nullity Decree because your marriage was voidable, your children are automatically legitimate because the marriage is considered to have legally existed until the date annulment is granted. And if you obtain an annulment because your marriage was void, there is a presumption that your child is legitimate, which can only be rebutted if it can be shown that at the time of insemination (or wedding, if later) neither party had a reasonable belief that the marriage was valid.
If I Apply For Annulment, Rather Than Divorce, Can I Still Apply For Financial Support?
Yes, you can apply for financial relief just as on divorce. You also have recourse to the same applications regarding children.
Do I Need To Go To Court?
Unlike divorce, there is no special procedure to obtain an annulment, which means a court hearing will always be necessary, and the proceedings will take place in open court, rather than in private. Like divorce, however, nullity is a two stage process with Decree Nisi followed by Decree Absolute, and a minimum six week gap between the two.
Is Legal Aid Available?
Yes, legal aid to obtain an annulment is available through Civil Legal Advice, subject to means testing.
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