Can I Obtain An Annulment As Opposed To Going Through The Process Of A Divorce?
In Ontario, annulments are governed by the Annulment of Marriages Act (Ontario), R.S.C. 1970, c.A-14.
It is extremely difficult to obtain a civil annulment. A civil marriage may be annulled on the basis that it is voidable or void ab initio (i.e. void from the beginning). Marriages may be void from the beginning due to lack of capacity to get married, a close familial relationship between the parties, or lack of consent to the marriage. An individual lacks capacity to get married if they are under the influence of intoxicating liquor or drugs or otherwise lack the mental capacity to understand the basic nature of the marriage contract.
A civil marriage that is initially valid may also be annulled on other grounds, being:
- Inability to consummate the marriage; or
- Fraud.
This article will focus on an inability to consummate the marriage.
The law distinguishes between the inability to consummate and a willful refusal to do so. A party is required to show that at least one of the parties is incapable of engaging in sexual intercourse with their spouse. Whether the impotence is based on a physical inability or through a psychological incapacity makes no difference.
The mere refusal of marital intercourse is not sufficient to warrant a decree of nullity. There has to be incapacity of some kind which, in some cases, is a physical defect but may also include psychological incapacity. In effect, some type of invincible aversion to the act of intercourse must exist.
Recent case law suggests that a court may also consider cultural and religious beliefs in determining a party’s psychological incapacity to consummate the marriage. This may include a religious belief that marriage should not be consummated until the completion of certain stages of a marriage ceremony.