A nullity of marriage order, more commonly known as an annulment, brings a marriage to an end by declaring that it was either never legally valid or became invalid due to a legal defect.
While annulment ultimately has the same practical effect as divorce in ending a marriage, the legal basis for annulment is very different (and more commonly seen in American TV shows).
It is important to understand how void and voidable marriages are different. The outcomes and financial remedies available vary between the two.
What is a Nullity of Marriage?
A nullity of marriage order annuls a marriage on the basis that it was either:
- Void: meaning the marriage was never legally valid from the outset; or
- Voidable: meaning the marriage was legally valid at the time it took place but can be annulled due to specific legal grounds.
Annulment does not “cancel” a marriage in the same way that divorce dissolves it. Instead, the court will declare that the marriage was invalid or legally defective. Once the nullity order is granted by the court, the parties may remarry, just as when a final order is granted in divorce proceedings.
When to Apply for an Annulment
Applications for annulments can be made at any point, be that in the first year of marriage, or in the years after. Unlike divorce, there is no requirement to have been married for a minimum period before applying.
However, where an application is made several years after the marriage took place, the court may ask for an explanation as to the delay. This does not automatically prevent an annulment being granted, but the timing of the application can sometimes be relevant to the court’s consideration of the case.
Void Marriages
A marriage is considered void if it was never legally valid pursuant to the law in England and Wales. As a void marriage is treated as if it never existed, either party may apply to the court for a declaration of nullity.
Common grounds on which a marriage may be void include:
- One or both parties were already legally married or in a civil partnership at the time of the marriage, also known as bigamy.
- The parties are closely related and prohibited from marrying by law. Included in that class are parents, siblings, children, grandparents, grandchildren, aunts and uncles, and nieces and nephews. The list includes half-blood and adopted family members.
- The legal requirements of the Marriage Act 1949 were not complied with (e.g. giving sufficient notice, the ceremony not following the required format).
- One or both parties were under the age of 18 at the time of the marriage (or under 16 if the marriage took place before 27 February 2023).
Where a marriage is void, it is legally invalid from the beginning, regardless of how long the parties lived together or whether they believed themselves to be married.
Voidable Marriages
A marriage is voidable where it was legally valid at the time it was entered into but can be annulled because of a defect that existed at that time. Unlike void marriages, a voidable marriage remains legally valid unless and until the court grants a nullity order.
Grounds for a voidable marriage can include:
- The marriage not being consummated owing to incapacity or wilful refusal. This means that you have not had sexual intercourse with the person you married since the wedding. Whilst an outdated notion, this criterion does not apply to same‑sex couples.
- One party not validly consenting to the marriage (for example, due to duress or mistake).
- One party having a sexually transmitted disease at the time of the marriage, and the other party being unaware.
- One party being pregnant by another person at the time of the marriage, and the other party being unaware.
- One party being in the process of transitioning to a different gender.
- One party having a mental disorder (within the meaning of the Mental Health Act 1983) of such a kind or to such an extent as to be unfit for marriage.
Why the Distinction Matters
Correctly characterising a marriage as void or voidable is crucial. Doing so correctly permits determination of whether the marriage is void or voidable; makes clear who may apply for a nullity order; and informs the position as to financial remedies.
While the court has the power to make financial orders following annulment, the approach taken can vary depending on whether the marriage was void or voidable and the particular facts of the case.
Annulment and Financial Remedies
Although annulment differs from divorce, parties may still apply for a financial remedy order following a nullity of marriage order. The court’s powers largely mirror those available on divorce, but outcomes will depend on factors such as the length of the relationship, the contributions made by each party, and the circumstances surrounding the marriage.
It is important to distinguish between void and voidable marriages and a non-marriage (i.e. there was a non-qualifying marriage ceremony). A non-marriage would not give rise to any financial claims under the Matrimonial Causes Act 1973.
Given the complexity of these issues, specialist legal advice is strongly recommended before issuing an application.
How We Can Help
Annulment cases are often legally and emotionally complex, not to mention rare in practice. Our experienced Family team can advise you on the steps involved.
If you require assistance in relation to the topic of this article, please do contact us and we would be pleased to assist you.