Obtaining an annulment in British Columbia is difficult — much harder than getting a divorce. In fact, if you and your former spouse can agree on parenting, property division, pets, and support, divorce is almost always the more practical and cost-effective option.
That said, some spouses pursue an annulment instead of divorce for personal, cultural, or religious reasons. While annulments are rare, having a skilled legal team, strong evidence, and a clear strategy can improve your chances of success. This article explains what an annulment is, how the process works, and the most common grounds on which annulments are granted in British Columbia.
What Is an Annulment?
An annulment is a court declaration that a marriage is legally invalid — in other words, that it never truly existed, or that circumstances exist to recognize it as
invalid. In British Columbia, marriages fall into three categories: valid, void, or voidable.
- Valid marriage: Entered into freely and with consent, recognized by law.
- Void marriage (void ab initio): Considered invalid from the outset, as if it never occurred. This typically arises when one party lacked capacity to consent, or if they were already married.
- Voidable marriage: Valid until a court declares it invalid. For example, a marriage may be annulled if the spouses were unable to consummate it. As the court noted in CMD v RRS, 2005 BCSC 757, nearly all marriages are presumed valid unless declared otherwise by the Supreme Court of British Columbia.
How Do You Obtain an Annulment?
The only way to obtain an annulment is by court order — you and your spouse cannot “agree” to annul your marriage outside of court. Even with mutual consent, a judge must be satisfied that legal grounds exist.
The Process:
- File a Notice of Family Claim: This formally starts a court action seeking annulment. It must be served on your spouse.
- File a Notice of Application: Once timelines are met, you must apply to schedule a hearing before a judge.
- Provide Evidence: Usually through affidavit evidence, explaining why the annulment should be granted.
- Court Hearing: A judge reviews the evidence and makes a decision. If annulment is denied, the parties must proceed by divorce instead.
Given the complexity of the process, legal advice is highly recommended before pursuing an annulment application. Grounds for Annulment in British Columbia Unlike divorce (which is governed by the Divorce Act), annulments are based on common law principles. Courts have recognized several grounds, with the most common being:
- Lack of Consent at the Time of Marriage
- Duress
- Inability to Consummate the Marriage
1. Lack of Consent
If a party does not understand the nature of the marriage contract or the obligations that come with it, the marriage may be declared void. As the court stated in Ross-Scott v Groves Estate, 2014 BCSC 435, consent must be free, clear, and informed. A lack of genuine consent — such as incapacity due to impairment — may render a marriage void from the start.
Davinson v Sweeney, 2005 BCSC 757 confirms that the primary question the court must determine is whether a party to the marriage was capable of understanding that they are entering into a contract of marriage. Accordingly, there must be a clear lack of consent indicating that a party is incapable of understanding the duties and obligations flowing from marriage for an annulment to be granted on this ground.
2. Duress
A marriage may be annulled if one party was forced or pressured into it. In RH v RT, 2011 BCSC 678 at paragraph 28, the Supreme Court of British Columbia provided a non-exhaustive list of considerations a court may consider in their analysis:
[28] Accordingly, it can be summarized that there are several factors the court must examine to determine if the applicant’s mind was so overborne by pressure to constitute duress vitiating the consent to marriage. Oppression can take many forms and the matter is one of degree which is a question of fact for the court. The circumstances to be considered in the assessment include:
- the party’s emotional state at the time of the marriage ceremony,
- the party’s vulnerability,
- the time between the alleged coercive conduct and the marriage ceremony,
- whether marriage was consummated,
- the residence of the parties during the marriage,
- the amount of time until the start of the annulment proceedings.
The most important consideration for the court when considering an annulment on the basis of duress is the party’s emotional state at the time of the marriage ceremony. This emotional state must completely overbear the party’s ability to consent. While duress before the marriage ceremony may still be relevant, the party’s emotional state at the time of the ceremony will remain the paramount consideration for the Court.
3. Inability to Consummate
An annulment may also be granted where it is practically impossible to consummate the marriage, due to a physical or psychological condition. As explained in HLC v MAL, 2003 BCSC 1461 and Grewal v Bal, 2020 BCSC 1588, it is not enough that spouses simply choose not to have intercourse — the inability must result from a condition that makes consummation practically impossible, not merely difficult or undesirable. Common examples include a previously unknown physical condition that renders one or both spouses incapable of consummation, or a psychological condition so severe that it completely incapacitates a party’s ability to engage in sexual intercourse. In either case, the court may annul the marriage on the ground of inability to consummate.
Final Thoughts
Annulments in British Columbia are complex and rarely granted. However, with careful preparation and strong evidence, they are possible in specific
circumstances.
At Dhanu Dhaliwal Law Group, our Family Law team has extensive experience with annulments and has successfully represented clients seeking declarations of
nullity. If you are considering pursuing an annulment, contact us today to schedule a consultation and discuss your options.
Written by Sarbi Bassi, reviewed and edited by Uphar Dhaliwal
