The breakdown of a marriage is difficult and can be a cause of extreme stress and anxiety. It can feel overwhelming to navigate the legal aspects associated with it. It is important to know and understand the options available to you. There are two different ways to end a marriage, namely divorce or annulment, but what are the differences?
What is an annulment?
An annulment, or a nullity order, is a declaration by the court that a marriage or civil partnership was not legally valid or had become legally invalid. It differs from divorce or dissolution, as it is a retroactive legal ruling that considers the marriage/civil partnership to be invalid from the start. An annulment acts as if the marriage/civil partnership had never in fact occurred and removes the marriage from the record. Proceedings for nullity are relatively rare but may still be appropriate in certain situations.
What is divorce?
Divorce is the process of ending the marital status of the couple. In England and Wales, the financial ties, rights and responsibilities that are associated with a marriage, remain intact upon a divorce, until they are severed by a financial remedy court order.
As of 6 April 2022, divorce law changed substantially to what is now known as ‘no-fault divorce’ with the introduction of the Divorce Dissolution and Separation Act 2020 (DDSA 2020). Before this an applicant for divorce had to provide one of five reasons as a ground for divorce, such as adultery, unreasonable behaviour or 2 years of separation, to name a few. As the law now stands, after 1 year of marriage a person can apply for a divorce on the sole ground that the marriage has ‘irretrievably broken down’ (and no other reason for divorce may now be used).
Divorce applications can now be made on a joint or sole basis, and can no longer be defended. The court must accept the statement from the applicant/s that the marriage has irretrievably broken down. The divorce process takes a minimum of 6 months as there are in-built waiting periods between the different stages.
The first stage of divorce is the application. Once this has been issued by the court, there is then a 20-week waiting period before you can apply for the first order of divorce – the Conditional Order. A conditional order confirms that the court agrees you are entitled to a divorce but does not actually grant the divorce itself. There is then a further waiting period of 6 weeks and one day before you can apply for the Final Divorce Order which will legally end the marriage.
How do the legal grounds for annulment differ from those of divorce?
As noted above, since the introduction of the DDSA 2020, to obtain a divorce you simply have to ensure you meet the requirement of one year married and state that the marriage has irretrievably broken down. For an annulment, you must prove to the court that the marriage is either void or voidable.
The grounds on which a marriage is void or voidable, and the bars preventing annulment are established in the Matrimonial Causes Act 1973 (MCA 1973). While the grounds for divorce have been recently altered and updated, there were no substantive changes made to the law regarding nullity proceedings. Therefore the grounds on which a marriage or civil partnership may be void or voidable remain unchanged.
A void marriage is one that the court would view as never having taken place, and therefore void at its inception. There are three grounds on which a marriage celebrated after 31 July 1971 is void under English internal law:
- Either party is under the age of 18
- The parties have married in disregard of certain requirements as to the formation of marriage
- At the time of the marriage, either party was already lawfully married or a civil partner
- In the case of a polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales.
Alternatively, a voidable marriage is treated as valid until the decree of nullity is obtained declaring it is void. A marriage is voidable if one of the following factors can be found:
- One or both persons have an interim gender recognition certificate
- Either partner was suffering from a mental disorder at the time of marriage
- It wasn’t consummated – the couple haven’t had sex since the wedding due to one party’s incapacity to consummate the marriage or wilful refusal to consummate (this doesn’t apply for same-sex couples)
- The marriage wasn’t consented to, whether in consequence of duress, mistake unsoundness of mind or otherwise – for instance, one or both persons were drunk or forcibly coerced
- One or both persons had a sexually transmitted disease when the couple were married (not applicable to civil partnerships)
- The woman became pregnant by another man prior to marriage
What is the legal process for obtaining an annulment?
The process of obtaining an annulment begins with the ‘nullity application’ asking the court for an annulment.
Once a nullity application is completed and filed with the court, your spouse has 14 days to acknowledge the service of that application and respond as to whether they agree the marriage should be annulled. If they agree, a ‘conditional order of nullity’ can be applied to confirm that the court has no reason not to annul the marriage.
You then need to wait for the ‘conditional order of nullity’ to be granted. Once the conditional order has been received, there is a further six week waiting period before you can apply for a ‘nullity of marriage order’. This is the final document that says the marriage has been annulled. This confirms you are no longer married and were never legally married. In some cases, you may need to go to court even if your spouse agrees to the annulment.
This process can take around 4-6 months but will be longer if the nullity application is contested.
How can annulment affect financial settlements and property development?
Similarly to a divorce, an annulment does not end the financial relationship between you and your spouse. Instead, an application for financial settlement must be made to the court to enable matrimonial property and/or assets to be formally divided. The court can make broadly the same orders for financial provision as it can on divorce.
The court will consider and balance the same factors (as set out in section 25 of the MCA 1973) when deciding the financial settlement of parties, as they do for financial remedy orders upon divorce. These factors are:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions each of the parties has made or is likely to in the foreseeable future for the welfare of the family, including any contribution by looking after the home or caring for the family;
- the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
- the value to each of the parties to the marriage of any benefits which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
As in financial remedy proceedings associated with a divorce, various processes outside of court can be used to reach an agreement with your spouse as to how your assets are to be divided, such as mediation, solicitor negotiation or arbitration. However, to formally sever your financial ties and claims against each other, any agreement reached outside of the court will need to be approved by the court and presented in a court order to be binding against both of you.
What is the impact of annulment on child custody and support?
The process for determining child arrangements is the same, whether the parents are divorcing or seeking an annulment. Because child arrangements are viewed as a separate issue from the divorce or annulment, these do not change and are therefore not specific to the method in which the relationship is dissolved.
When deciding child arrangements the court’s paramount concern is the welfare of the child/ren. The court considers various factors, such as the child’s physical, emotional, and educational needs; the likely effect of any changes in circumstances; the child’s age, sex, background, and any characteristics the court considers relevant; any harm the child has suffered or is at risk of suffering; and how capable each of the parents (and any other relevant person) is of meeting the child’s needs.
Both parents have a legal duty to financially support their children, and this duty does not change with the annulment of a marriage. The Child Maintenance Service (CMS) can be used by parents to arrange child support payments, and the amount of support is typically calculated based on the non-residential parent’s income, the number of children they need to support, and how often the children stay with them.
The method of calculating child support is unaffected by whether a marriage is dissolved through divorce or declared null and void through annulment. The primary consideration is the financial needs of the children and the responsibility of both parents to meet those needs, irrespective of the legal status of their relationship.
What are the key differences?
As discussed above, the main difference between annulments and divorce is how the law views the status of the marriage. Annulments are relevant if the law views the marriage as being invalid, either at the time of the marriage or now, dependent upon the circumstances.
A key difference between annulments and divorce is the timing of the process. Annulments can be applied for at any time, while divorces can only be applied for after a year of marriage. This is illustrative of why the grounds for obtaining an annulment are a lot stricter than for divorce. They are highly unlikely to apply to most couples, making it an unviable option in most cases, and are rarely seen. An important decision will be whether it is in your best interests to apply for annulment or whether to wait until a year has passed to apply for a divorce instead.
Whether you are seeking an annulment or divorce, at Rayden Solicitors our expert divorce solicitors can advise on the right process for you. We will do our utmost to make the process as stress-free and efficient as we can, so you can have the clarity you need to start the next chapter of your life.
