An Ontario court recently considered the interesting question of when it may grant a party’s application to annul their marriage (instead of getting a divorce).

 

The Parties’ Story

The parties got married on August 16, 2016. They separated on January 10, 2017.

On March 9, 2018, the wife commenced an application, seeking an annulment of their marriage. The wife served her application on the husband on April 26, 2018, by texting copies of the application to the husband (there was an order that permitted the wife to serve her application by way of substituted service).

The husband did not file an answer or participate in the proceeding in any way.

In support of her application, the wife filed an affidavit for an uncontested trial. The affidavit outlined the dates of the parties’ marriage and separation, and indicated that:

  • The parties never lived together.
  • The parties had no children.
  • The parties never consummated their marriage.
  • The marriage was a fraud from the outset, intended to assist the husband to obtain immigration status.

 

A nullity will be granted in two situations:

  • Where there is no valid existing marriage from the very outset; or
  • Where the marriage was validly entered into, but the cause for ending the marriage existed from the very outset.

In the second scenario, the marriage is considered voidable. A voidable marriage is considered to be a valid marriage unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”

Marriages can be voidable when they are not consummated and when they are entered into for fraudulent purposes only.

 

The Court’s Decision

In this case, the court dismissed the wife’s application. It found that an annulment could not be granted as a result of either argument (i.e., as a result of the fact that it was not consummated or that it was entered into for immigration purposes only).

The court explained that, historically, annulments based on non-consummation required evidence of permanent physical impotency. It went on to state:

This [an annulment based on non-consummation] has been expanded to include evidence of psychological factors that effectively create a permanent psychological impotency. Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient

The court concluded that, on the evidence before it, the husband did not have any permanent impotency that would permit the wife to annul the marriage based on non-consummation. Rather, the court found that the husband wilfully refused to consummate the marriage, which was not sufficient.

Finally, with respect to the immigration issue, the court noted that the Ontario Court of Appeal (in its decision in Iantsis (Papatheodorou) v. Papatheodorou) held that immigration fraud cannot be relied upon to grant an annulment.

 

Lessons Learned

The court will only grant an annulment in rare cases where the party seeking the annulment demonstrates that the marriage was entered into for fraudulent purposes, or consummation of the marriage is impossible.

If you have questions about your separation or divorce, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

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