Marriage is a fundamental institution in Canadian society. It is a mutual commitment through which two people agree to share a community of life and share their rights and responsibilities.
When a marriage fails, the most common course of action is divorce, as provided for by the Divorce Act. In this case, the marriage is recognized as valid, but the spouses wish to end it. Divorce therefore dissolves an existing marriage, generally after at least one year of separation, or on grounds of adultery or mental or physical cruelty.
In contrast, the annulment of marriage aims to establish that the union should never have taken place. If granted, the marriage is deemed never to have existed. It is therefore not about dissolving a legitimate marriage, but declaring that this bond was never validly formed. This being said, applications for annulment of marriage are granted only in exceptional circumstances. This remedy, provided under Article 380 of the Civil
Code of Québec, allows one to claim nullity due to an irregularity either in the formal validity (under provincial jurisdiction), or in the essential validity (under federal jurisdiction).
The formal validity, prescribed by the Civil Code of Québec, includes the following:
– The marriage must be contracted openly, before a competent officiant and in the presence of two (2) witnesses (Article 365 C.C.Q.);
– The officiant must ascertain the identity of the future spouses (Article 373 C.C.Q.);
– The officiant must read to the intended spouses, in the presence of the witnesses, the provisions of the Civil Code of Québec regarding the rights and duties of spouses (Article 374 C.C.Q.);
The essential validity, prescribed by the Federal Law—Civil Law Harmonization Act, No. 1, is as follows:
– The free and enlightened consent of both parties (Article 5);
– A minimum age of 16 years for the future spouses (Article 6);
– A new marriage cannot be contracted until a previous marriage has been dissolved by death, divorce, or annulment (Article 7);
Courts have already recognized certain specific cases of annulment. For example, the absence of intent to share a community of life, especially when the marriage is contracted solely to obtain citizenship or permanent residency status, constitutes an error that vitiates the other spouse’s consent.
In the event of annulment, even though the marriage is deemed never to have existed, the spouse acting in good faith may claim the effects of the marriage, such as the division of property of the spouse acting in bad faith (Article 382 C.c.Q.).
In summary, even though an annulment is an exceptional remedy, it allows a wronged party to obtain justice and correct a situation where a marriage should never have been recognized.
Please do not hesitate to contact us with any questions on this matter.
Text written by Me Lauren Saad
