There are two ways to bring a marriage to a legal end in England and Wales: divorce and annulment. I have written extensively about divorce on this blog in the past, so now let’s look at annulment.
My thoughts turned to annulment during my latest appearance on Radio Verulam in St Albans, where I have a monthly question and answer spot for family law questions from listeners.
Today, one such listener explained that she had recently married her boyfriend only to discover that the name on his passport was completely different from the one she knew. This shocking revelation happened when the couple were returning from their honeymoon, only three weeks after they married. “Who have I married?” she asked “What can I do?”
In my experience, there are no good reasons for travelling on a false passport, (which is an offence) if indeed it was a false passport. Perhaps it wasn’t. Perhaps it is real and she had unwittingly taken part in a sham marriage with the marriage information being fake. Perhaps he is a bigamist or trying to stay in the country via a sham marriage. Or for all she knows, his identity as known to her and his identity on the passport could both be fake. We live in dangerous times.
The lady herself wasn’t on the line, but no matter how you look at it, the omens aren’t good. The criminal implications are substantial and I suggested that if she was concerned and couldn’t get an acceptable explanation, she should contact the police. She doesn’t want to be caught up in a crime and they have extensive power to do background and identity checks that she does not.
If she wanted to simply divorce him, she would have to wait for a full year before she could begin proceedings. Annulment, however, is available at any time after the wedding and it’s the way for her to go legally, if she wants out.
Annulment has a different set of criteria from divorce. It is not good enough to simply say that the marriage has broken down. People who want their marriage annulled must show that it was not valid in the first place or it was “defective” (voidable).
In the case of a void marriage there has never been a valid marriage at all, because there was no capacity by one or both parties to enter into such a marriage, as defined by Section 11 of the Matrimonial Causes Act 1973.
Examples of this would be if a couple is too closely related; or under the age of 16 when they married; or one of them was either already married or in a civil partnership.
A voidable marriage is also capable of annulment. Under Section 12 Matrimonial Causes Act 1973 a party must demonstrate that the marriage is “defective” or “voidable” – for example their marriage has never been “consummated” – although this option is not available to same sex couples. If one party had a sexually transmitted disease they did not disclose or if the wife was pregnant with another man’s child the marriage can also be annulled.
A lack of informed consent is another way to annul a marriage. Perhaps one party was forced into it or they were drunk at the time. Or, like in this very unusual case, one party has misrepresented who they are. How can one person have properly consented if they did not know who they were really marrying?
If any of those circumstances apply, a party can issue a “nullity petition”, which is available on the Ministry of Justice’s website. Then they need to file that petition with their nearest divorce court. The entire process costs £550 – the same as the current fee for a divorce.
Interestingly, financial remedies open to divorcing couples are also available to those who obtain an annulment. This can be particularly necessary if the female is pregnant or has children.
Compare and contrast a void or voidable marriage with a ‘non-marriage’ where parties have gone through a ‘marriage’ ceremony that cannot reasonably be considered a marriage when viewed objectively. In those circumstances, no annulment at all is required and no financial remedies are available even if a child has been born.
With the advent of many more foreign nationals setting up home in England there are a growing number of cases where the court has to decide what constitutes a marriage – because a financial settlement depends on it. One spectacular case dragging its way through the court in London which has been reported extensively involves an extremely wealthy billionaire who went through an Islamic marriage ceremony in London but whose ‘marriage’ was eventually declared a ‘non-marriage’ after a substantial inquisition by the court. A child had been born and as a result of the Court’s decision, that ‘wife’ was entitled to nothing and the child was limited to claims under Schedule 1 Children Act 1989 only.
Annulments are still comparatively rare, and in these extreme cases they can be the best way to get out of a bad marriage fast while retaining all the financial claims available for divorce.