What's the difference between divorce and annulment?
Like a divorce, an annulment legally ends your marriage and it means you are free to marry again if you wish. However, this form of legal separation is very different to divorce in many ways, so if you’re separating from your spouse and you’re wondering which route to take, it’s important to have a clear understanding of what both of these processes involve.
05 January 2016
What is an annulment, and how’s it different to a divorce?
In short, an annulment is a legal procedure that ends a marriage by declaring it null and void. It can be granted if a marriage is deemed to be either defective or never valid from a legal standpoint in the first place. If you are able to establish that your marriage to your partner was never legal, then in the eyes of the law, it is as though it didn’t happen.
In contrast, a divorce doesn’t bring into question the legal validity of a marriage; instead, it is the legal dissolution of a marriage. Unlike an annulment (which you can get at any time after your wedding), you have to have been married for a year before you can apply for a divorce.
Can I get an annulment?
To apply for an annulment, you have to complete a nullity petition. It is important to be aware that the grounds for annulment are limited and they can be difficult to establish.
You can get an annulment if your marriage can be shown to be ‘void’, meaning it was not valid under the law in the first place. For example, your marriage may be void if you or your partner was under the age of 16 when you married, if you are closely related or if one of you was married to someone else or in a civil partnership when you married.
It’s also possible to get an annulment if your marriage is ‘voidable’. This applies if you never consummated the marriage (although this is not the case for same sex couples), you didn’t give proper consent to marry (for example, if you were under the influence of alcohol or you were coerced into it) or if the woman was pregnant with another man’s child when you married. Your marriage may also be voidable if one of you had a sexually transmitted disease when you got married.
Can I get a divorce?
There’s only one ground for divorce and that’s the irretrievable breakdown of marriage.
You’ll need to submit a statement of irretrievable breakdown and apply for a conditional order. This can be completed solely or jointly with your spouse.
With a sole application, the respondent must file an acknowledgement of service (a document acknowledging receipt of notice that the applicant wishes to divorce) within 14 days of service. If they intend to dispute the proceedings, they must file notice of this within 21 days following the initial 14 days. This will be known as a ‘disputed’ case rather than a ‘defended’ case.
Although the no-fault divorce removes the option to contest, there’ll still be some legal grounds for a respondent to challenge the divorce. It’s best to in the first instance if you believe there may be grounds to challenge a petition.
Your next step
Whether you think you may qualify for an annulment or you’re looking to get a divorce, it is important to seek expert legal advice. A family law solicitor will talk you through your options and guide you through this process. Separating from your spouse can be an emotionally fraught time and you will no doubt have a lot on your mind. As well as ending your marriage from a legal standpoint, you might have to resolve potentially complex issues concerning children, money, property and more.
A specialist solicitor will help you to protect your interests and achieve the best outcome for you and your family. They will be able to tell you whether you have grounds to file for annulment or divorce, and advise you on the next steps to take. They will also help to minimise any stress and anxiety during this difficult period.
How Slater and Gordon Lawyers can help
Whatever your circumstances, our family law experts will offer tailored support and guidance throughout the process.
Many of our specialists are also members of Resolution, an organisation of lawyers that promotes a constructive approach to family law. Where possible, we help our clients to avoid going to court, therefore keeping expenses, stress and conflict to a minimum.
All information was correct at the time of publication.