Seeking a marriage annulment: what you need to know

Many people believe that marriage and family are the bedrock of any society. There are valid reasons for thinking this. The institution of marriage is as old, and maybe older than our ideas of civilisation itself. However, while getting married is supposed to mean ‘happy ever after’, this is not always actually the case. Divorce is a common solution to an unhappy marriage. But, for some people, divorce is unacceptable for religious or cultural reasons but there is an alternative: marriage annulment.

What is marriage annulment?

An annulment is a pronouncement by the court that brings a marriage to an end. But an annulment means that the marriage never existed in the first place due to some fundamental defect. That is the difference between annulment and divorce.

There are various grounds for seeking an annulment but, before doing so, it is important to understand the difference between a void marriage and a voidable marriage. Void means ‘empty’ and a marriage that is found to be void never existed. It was not a marriage at all, at any point.

However, a voidable marriage is not, per se, void. Parties to a voidable marriage can be considered as married until such time as one of the parties, having been wronged, seeks an annulment.

It’s a subtle but important difference. Basically, a void marriage does not exist but a voidable marriage does exist until it doesn’t.

Void v Voidable marriages

A marriage is considered to be void where:

• The spouses are closely related;
• Either spouse is aged 16 or under; or
• Either spouse was already in a valid marriage or a civil partnership

In the case of any of the above, the marriage is invalid or void and an annulment can be sought.

A marriage is considered to be voidable where:

• The marriage was not consummated (though this condition does not apply to same-sex marriages);
• Either party did not consent to the marriage;
• Either spouse had a sexually-transmitted disease at the time of the marriage, which they did not disclose to the other;
• The woman was pregnant by someone else at the time of the marriage; or
• Either spouse decides to undergo a sex reassignment procedure.

In the above cases, the marriage does exist and can continue to do so provided both parties agree but the wronged party can always apply for annulment. If successful, the marriage ends.

Seeking an annulment

The party that wishes to annul a marriage will have to apply for a ‘nullity petition’. There is a strict legal process to be followed. First of all, either spouse must have lived in either England or Wales for at least a year before the date of the application or must have had a permanent home in England and Wales for at least six months before the date of the application.

As a rule, an annulment application must be made not more than three years after the date of marriage. If the petition is presented later than that, the applicant may be required to explain the reason for the delay.

Provided the pre-conditions are met, the petition can be filed at the nearest family court and the filing fee which must be paid is currently £550. The other spouse then has eight days to respond by stating whether they consent to the annulment or not. If the other spouse agrees, then the applicant will need to apply for a ‘decree nisi’, which confirms that there is no reason why the marriage cannot be annulled.

The court will assess the application to ascertain whether there are any reasons why the marriage cannot be annulled and may reject the application if there is evidence that shows that the applicant knew about the situation prior to the marriage and, nonetheless, accepted it. However, if the court is satisfied that the marriage is indeed void or voidable, then they will issue a decree of nullity which confirms that the applicant was never legally married or that they are no longer married.

First steps

Unless you are familiar with family court procedures and court requirements, then you really should take legal advice as a first step. Annulling a marriage is not easy and a lawyer experienced in family matters can make the process a lot easier for you. When attending the first appointment with your solicitors, you should take with you your marriage certificate or certificate of civil partnership and any documents or letters that you intend to rely on as evidence.

For further information and trusted legal advice regarding matters of divorce, get in touch with our Resolution-accredited divorce lawyers in London at Carlsons Solicitors.