What is the difference between annulment and divorce?

    What is the difference between annulment and divorce?

    There are two ways to bring an end to a marriage – annulment or divorce. While a divorce legally ends a marriage, an annulment declares the marriage null and void, as if it never existed. The end result is the same for both options – the parties are each free to marry again.

    It never is a question of either/or – do I ask for my marriage to be annulled or do I ask for a divorce? The question is: should you go for an annulment instead of a divorce?

    Can I get an annulment?

    An application to the court may be made for an annulment in circumstances where a marriage is either void or voidable.

    What is a void marriage?

    A void marriage is void from the outset and may be treated by both parties as never having taken place at all without any need for a decree of nullity. But most parties will want to obtain a decree so that advantage may be taken of the court’s powers to resolve financial issues pursuant to the decree.

    So, a void marriage is one where:

    • the parties are within the prohibited (by blood or marriage) degrees of relationship, e.g. father/daughter
    • either party is under the age of 16
    • the parties were married in a place not registered to perform the ceremony
    • either one of the parties was already lawfully married (bigamy) or civilly partnered
     

    What is a voidable marriage?

    A marriage may only be voidable on the following grounds:

    • the marriage has not been consummated because of the incapacity of either party to consummate it
    • non consummation due to the wilful refusal of the respondent to do so
    • either party did not voluntarily or validly consent because of duress, lack of mental capacity, drugs or alcohol
    • at the time of the marriage the respondent was suffering from a venereal disease in a communicable form
    • at the time of the marriage the respondent was pregnant with another man’s child
    • an interim gender recognition certificate was issued to either party after the marriage
     

    Can I get a divorce?

    There is only one ground for obtaining a decree of divorce and that is that your marriage has irretrievably broken down.

    In order to prove that a marriage has irretrievably broken down proof of one or more of five facts needs to be cited:

    1. Your spouse has committed adultery AND you find it intolerable to live with him or her.
    2. Your spouse has behaved in such a way that you can no longer reasonably be expected to live with him or her.
    3. Your spouse has deserted you for a continuous period of more than two years.
    4. You and your spouse have lived separately and apart for a continuous period of two or more years AND your spouse consents to a decree of divorce being pronounced.
    5. You and your spouse have lived separate and apart for a period of five or more years.
     

    Read more: What are the grounds for divorce in the UK?

    When can I apply for an annulment or divorce?

    Applications for nullity may be brought at any time after the marriage. There is no need to wait for a year. However, the parties must have lived in England or Wales for at least one year and have to have had a permanent residence in England or Wales for six months.

    Applications for divorce may only be made once the parties have been married for one year or more.

    Read more: A quick guide to the divorce process

    Both divorce and nullity attract an issue fee for filing the application with the court of £550. In both cases the respondent needs to respond to the court. Then the applicant may apply for a decree nisi and, thereafter, a decree absolute.

    It is always best to consult a solicitor to assist in the preparation and pursuit of an application for a decree of divorce or annulment since there are many pitfalls waiting to trap the unwary.

    Are you considering getting a divorce? Download our free guide and find out the six key decisions you need to make.

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