Differences between an Annulment and a Divorce

Both an annulment and a divorce are legal procedures connected to marriage, but they are quite different, and have a different legal effect. Under English law, an annulment is a court declaration that a marriage was not legally valid, or that it became invalid. A divorce is a legal decree ending a valid marriage. An annulment decree wipes out the marriage as though it, legally, never was, a divorce acknowledges that a marriage legally existed but is now over. The English law procedures and grounds for obtaining a divorce or an annulment are very different.

Annulment and divorce are only legally applicable to a marriage between a man and a woman. (There are different legal procedures to end civil partnerships.) A court cannot issue either a divorce or an annulment decree, unless there was a legally recognized marriage. Under English and Welsh Law, legally recognized weddings require certain formalities. The man and woman must be over 16. In England and Wales (but not Scotland), where one or both of those contracting the marriage is under 18, a valid marriage requires parental consent, in writing. The wedding ceremony must be in a place legally approved for marriage, e.g. a registry office, Church of England Church, other religious building registered to solemnize marriage (some Catholic churches, mosques, and temples are registered, but many are not). All Church of England clergy are automatically registrars other clergy must apply for appointment. The couple must produce documents proving their names, address, nationality, age, and proof of the ending of any previous marriage or civil partnership. People subject to immigration controls require additional documents. Couples must give official notice of their intention to marry, in a civil ceremony. Officials post this notice outside the registry office 15 days prior to the ceremony. Those contemplating Church of England weddings must usually allow three Sundays, before the wedding, for the reading of the banns.

To apply for an annulment a marriage must be void or voidable. If a marriage is void, technically, an annulment is unnecessary, because, legally, it never existed, however, many people apply for an annulment because legal documentation confirming the fact is useful. A marriage is legally void, if either party contracting the marriage was under 16, the marriage was between two members of the same sex, or either party was already married or in a civil partnership at the time of the wedding. If the couple is within the ‘prohibited degrees of relationship’ boundaries, the marriage is also void. Under English law, you cannot marry a parent, including a former or current adoptive parent, brother, sister, half-brother, half-sister, niece, nephew, aunt, uncle, grandparent, or grandchild. There are legal restrictions on stepchildren and stepparents marrying, but this may be allowed in certain circumstances.

A court may also grant an annulment where a marriage is voidable. Voidable marriages are those apparently legally contracted, at the time of the wedding, but later discoveries or circumstances mean that the contract between the partners mean that one party has possible grounds for annulment. However, until the annulment is declared by a court, the parties are legally married. A marriage is voidable if is unconsummated (sex has not occurred since the wedding), if either party did not freely consent to marry (forced marriage), or if either party lacked the mental capacity to consent. A marriage is also voidable if one party, unbeknown to the other, had a sexually transmitted disease at the time of the wedding, or if the bride was pregnant with someone else’s child at the time of the wedding and the groom was unaware that the child was not his. Marriages may also be voidable where one person has changed or wants change legal gender. The annulment procedure can begin at any time after the wedding and the judge will consider various factors when deciding whether to annul a voidable marriage, including how long the couple was married and how long since one party discovered the reason why he or she is applying for the annulment.

Where a marriage is void or voidable, under English law, the procedure is to apply to the family court for a decree of nullity. The application form is available online along with instructions as to how to file a petition and fill the form.

A petition for divorce is an entirely different procedure. The ground for divorce in English Law is irretrievable breakdown of marriage. A couple cannot apply for divorce for 1 year after a legally recognized wedding (see above).  The marriage must have permanently broken down. Couples can show that their marriage breakdown is irretrievable by citing evidence of adultery, unreasonable behaviour, or desertion.

Adultery happens when a husband or wife has consensual sex with someone of the opposite sex, and the other partner does not want to carry on living with him or her, and decided that he or she did not want to do so within six months of the adultery. Rape is not adultery. The court requires detailed evidence that the adultery took place, statements from husband and wife, and an admission from the guilty party.

Unreasonable Behaviour includes physical or emotional abuse, withdrawal of affection or attention, refusal to allow the spouse to leave the house, and giving a spouse reason to believe that you are having an affair. The court requires evidence that unreasonable behaviour has occurred and that it is serious enough to give grounds for divorce, such evidence might include medical reports and statements from friends, family or others.

Proving desertion involves substantiating the facts that a spouse has left the matrimonial home without agreement or good reason for more than two years in the last two and a half years, aiming to end the relationship. The couple may live together for up to six months in total during the period and still substantiate desertion.

 A couple living apart for more then two years can, with mutual agreement, divorce. Consent must be in writing. Living apart for more than five years can be a reason for divorce without one party’s consent, but the dissenting party can object. The court will consider an objection where the divorce would cause them ‘extreme’ difficulties.

Those wanting a divorce, fill in a divorce petition applying for a decree of divorce. Couples in England and Wales can download the divorce petition form from the U.K. government website and get help and guidance as well as helpful advice leaflets. The form must go to a specialist divorce court, which will issue a notice of proceedings to the other party. If the other party does not notify the court, that he or she wants to defend the divorce. The applicant applies for a decree nisi, if the court grants this, the applicant can them apply for a decree absolute. A Decree Absolute is the document, which legally ends the marriage. It is the divorce decree. Until each partner receives a copy of their Decree Absolute, they are still married to one another. Judges will generally need to satisfy themselves about child custody, visitation and financial arrangements before granting the divorce.

There are many differences between an annulment and a divorce. The main differences are in procedures, grounds, and the decrees issued and whereas an annulment legally wipes out the marriage as though it had never been, divorce recognizes the marriage but severs the contract. A divorce is the severance of a marriage contract whereas an annulment is a legal statement detailing a problem at the root of the marriage contract, which renders the contract void or voidable. Despite the periodic rants in some newspapers and myths, to the contrary, there are specific legal reasons and requirements for granting either divorce or annulment decrees and neither are easy to obtain, even for celebrities.