Marriage annulment can be a viable alternative to ending a marriage and there are many reasons why somebody would want to annul their marriage.
In fact, recently there was a B.C. marriage that was annulled because the husband was unable to have sex with his wife! The husband did not disclose any sexual health concerns to his wife prior to marriage.
So the couple turned to the B.C. provincial legal system for help. A B.C. Supreme Court judge granted the woman an annulment after her husband was unable to maintain an erection or have sexual intercourse with her.
The story is actually quite interesting. In a judgement released by Justice Wendy Baker, precedent was set in 1857 for the courts to annul a marriage based on impotence. Prior to that, ecclesiastical courts were the only way to annul a marriage.
“Pursuant to the domestic law of British Columbia, a marriage is voidable where a claimant has established that their spouse lacks the capacity to consummate the marriage,” Baker wrote.
The couple were married on Aug. 11, 2018. The wife, S.Z., had sought an annulment instead of a divorce due to her faith.
According to Baker, evidence showed the couple attended pre-marriage counselling sessions at the Chinese Alliance Church in Vancouver,
although X.J. did not disclose to his future wife that he had any sexual health concerns.
Baker said the couple did not live together prior to marriage but did discuss having children together. The marriage was never consummated despite the couple’s attempts at sexual intercourse about twice a week from August 2018 to March 2019.
The wife is alleged to have asked her then-husband to see a doctor about his sexual health in June 2019 but he put it off. Later, the couple did see a doctor for a blood test, although the test did not reveal any health issues. The wife then asked her husband to get a second opinion, and alleges they tried to have sex four to five times a week after the initial doctor’s visit, but the parties stopped living together in September 2019.
Are you seeking a marriage annulment in B.C.?
People seeking a marriage annulment in B.C. for an ill conceived marriage is something the Family Lawyers team often has to handle here at Dhanu Dhaliwal Law Group.
Many people believe that they can simply have their marriage annulled if they’ve only been married for a year or two or haven’t made any major financial commitments as a couple.
It’s always disheartening to have to tell a client that the process isn’t as easy as it seems. In fact, a lot of people actually don’t know what an annulment is or how it works.
That’s why we are here to answer some common questions about annulments in British Columbia.
We’ll get you up to speed on how to get an annulment and help you determine what the best path forward is for your marriage.
What is an annulment?
An annulment is actually completely different from a divorce, both in legal terms and in how you will go about getting one.
An annulment is a court order that declares a marriage invalid.
Rather than in a divorce, where a marriage is ended, an annulment legally declares that the marriage in question was never a true marriage.
This often sounds great to people separating from their spouse. Now I can move on as if it never happened!
Unfortunately, it’s not that simple. You can only get a marriage annulment in B.C. for one of several specific reasons, and disagreement is not one of them.
What makes a marriage invalid?
In order to get an annulment, you need to be able to prove that your marriage was indeed invalid.
In British Columbia, a marriage can be declared invalid for any of the following reasons:
- one spouse was already married to someone else
- one spouse was under the age of majority and married without parental permission
- the marriage was entered into under duress, fear, or fraud
- one spouse lacked the mental capacity to understand the basic meaning of marriage
- one or both spouses was intoxicated during the marriage ceremony and was not able to give consent
- the spouses were too closely related to each other by blood or adoption
How do I get an annulment in BC?
To get an annulment in BC, you’ll first need to be able to prove that your marriage was invalid.
If you’re confident that this is the case, you can submit an application to the British Columbia Supreme Court. The application represents your concerns that your marriage is invalid.
Once your application is received and processed, you will be given a court date for your annulment. It is important to know that unlike in a divorce, you must attend court to get an annulment. Often, this means you will need to hire a family lawyer to assist you in the application and court process.
Sometimes, even if you may believe that your marriage is invalid, it may be simpler and less expensive to pursue a divorce, especially through alternative methods such as mediation. You should only opt for this if you are willing to accept that your marriage will be considered valid for the time it lasted.
However, you should know that even if a marriage is annulled, and it therefore never existed, a spouse is still able to make claims under the Family Law Act. The Family Law Act does not require a couple to have been married as it applies to common law couples as well. Therefore, claims can be made for child support, spousal support, and the division of family assets and debts even if you get an annulment. As stated in the Family Law Act at section 198(2):
(2)A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,
(a)in the case of spouses who were married, the date
(i)a judgment granting a divorce of the spouses is made, or
(ii)an order is made declaring the marriage of the spouses to be a nullity, or
(b)in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
“Extremely strict standard of proof required in earlier centuries”
In her concluding judgement, Baker wrote that although in earlier times, impotency needed to be permanent and without the chance of a cure, that was unnecessary for her to grant an annulment in 2020.
“I am satisfied that the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times. I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.”
If you believe your marriage is invalid and require an annulment, contact the team of family lawyers at Dhanu Dhaliwal Law Group to schedule a consultation. We have successfully assisted many clients with annulments as well as all other divorce and family law actions.