Married couples looking to separate from each other will typically choose the route of divorce. However, for those who have unusual circumstances, annulment may be a better option.
In this guide, we’ll discuss what an annulment is, the legal grounds for an annulment and how it differs from a divorce.
Key Points:
- An annulment is the declaration that the marriage is not legally valid
- Not all marriages can be annulled and there are strict criteria that must be met compared to divorce
- The division of assets will be treated differently to a divorce if the marriage is void; but, if the marriage is found to be voidable, then it is still possible to make claims for financial remedy orders under the Matrimonial Causes Act 1973 just as you would do in a divorce.
What is an annulment?
An annulment is a legal procedure that deems a marriage null and void. This essentially means that the marriage is erased from a legal perspective and it is declared that the marriage never technically existed and was never legally valid.
How long can you be married and still get an annulment?
Annulments are often applied for within the first year of a marriage. If you apply years after the marriage then you will need to explain the reason for the delay in applying for the annulment.
Do both parties have to agree to an annulment?
No, both parties do not have to agree to an annulment. Since an annulment is the declaration that the marriage was either not valid or now voidable, there are often not any grounds for both parties to disagree.
However, if one party does disagree, it can lengthen the process and is more likely to require a court hearing.
What are the differences between divorce and annulment in the UK?
The main difference between a divorce and an annulment is that an annulment declares the marriage null and void, whereas a divorce simply ends the marriage. A divorce does not bring into question the validity of the marriage and instead is the legal dissolution of the marriage.
Unlike when getting divorced, with an annulment there is no need to prove that there has been an ‘irretrievable breakdown’ of the marriage. Instead, it is just necessary to prove that the marriage was never legally valid.
You can apply for an annulment within the first year of marriage which is unlike a divorce when parties need to be married for at least 12 months before commencing a divorce.
If the marriage is considered not valid, the court will apply some principles regarding the division of assets and any other financial settlements.
Legal grounds for annulment vs divorce
Since the introduction of No Fault Divorce in 2022, the only grounds for divorce is that the marriage has ‘irretrievably broken down’. Parties no longer need to prove one of the previous five facts, which used to be:
- Adultery
- Desertion
- Unreasonable behaviour
- You have lived separately for more than 2 years and your spouse consents to the divorce
- You have lived separately for more than 5 years
However, with an annulment, you must prove the marriage was either void or voidable.
A marriage can be considered void, or never legally valid, if:
- Either spouse was under 16 years old at the time of the marriage
- Either spouse was already married or in a civil partnership at the time of the marriage
- The spouses are closely related
A marriage can be voidable if any of the following are true:
- The marriage was never consummated
- One spouse was forced into the marriage
- The respondent spouse had a undisclosed STI at the time of the marriage
- The respondent spouse was pregnant by someone else at the time of the marriage
- The respondent spouse is in the process of gender transitioning or had transitioned without the knowledge of their spouse at the time of the marriage
Timings of annulment vs divorce
Unlike a divorce, you can apply for an annulment in the first year of your marriage. With a divorce, you must wait 12 months from the date of the marriage before you can apply.
However, the longer you wait to apply for an annulment, you might be asked to explain why there was a delay in the application. For the marriage to be deemed voidable, you must apply for an annulment within 3 years since the date of marriage.
The full legal process of a divorce can take a minimum of 6 months and the same goes for an annulment as there are several steps to the process that must go through the court.
Why would you get an annulment instead of a divorce?
One reason many people choose to have an annulment instead of a divorce is due to religion.
Many religions hold a stigma around divorce and so since an annulment essentially acts as though the marriage never exists, it is often preferred amongst different religions.
How are assets split in an annulment?
In England and Wales, an annulment does not necessarily end the financial ties between ex-partners. However, if your marriage is void then it’s unlikely that you can claim financial relief from your ex-partner under the Matrimonial Causes Act 1973 as you would do if you were to divorce or if your marriage is voidable.
Instead, you will need to consider if you can make any claims in respect of any children or under the Trusts of Land and Appointment of Trustees Act 1996.
Which is right for me: annulment or divorce?
When deciding whether an annulment or divorce is right for you, it is important to familiarise yourself with the ‘void’ and ‘voidable’ criteria. If you’re unsure which option applies to your circumstances, we always recommend speaking to one of our family law solicitors.
Taking informed and reliable advice from our team is the best way to determine the right path for your unique situation. Get in touch with our experienced team today to see how we can help you.