What is an annulment compared to a divorce?

A marriage that has not complied with the legal requirements of validity can be treated as either invalid (void) or defective (voidable) and give rise to nullity proceedings being issued as opposed to an application for divorce. Although nullity proceedings allow the court to make financial orders in the same way that it does in divorce, there may be an advantage to applying for the marriage to be annulled, particularly where the couple have separated within the first year of marriage.

A civil partnership can also be annulled in the same way as a marriage, leading to the granting of a nullity order with the exception that a same sex couple cannot have the partnership annulled due to non-consummation of the relationship.

In certain circumstances, a marriage may be characterised as a ‘non-marriage’ which would then prohibit any financial claims from being made under the Matrimonial Causes Act 1973. The only claims that could be made in such circumstances would be under the Trusts of Land and Appointment of Trustees Act 1996 or Schedule 1 of the Children Act 1989 if there are children.

Void marriages

A marriage will be considered void if one of the following applies:

1. The couple were too closely related and therefore within the ‘prohibited degrees of relationship’.
   
   The prohibited degrees of relationship are set out at Schedule 1 of the Marriage Act 1949. Subsequent case law has refined that and the interplay of the Human Rights Act 1998 including marriages celebrated in other jurisdictions that would otherwise be considered void due to the connection of the couple.
   
   
2. Either of them were under the age of 18 where the marriage took place on or after the 27 February 2023.
   
   Until 27 February 2023, children aged 16 or 17 could legally marry or enter into a civil partnership with the consent of all those with parental responsibility. Marriages since that date will be considered void if either party were under the age of 18 years.
   
   
3. The relevant formalities as specified in the Marriage Act 1949 were not complied with.
   
   Parts II and III of the Marriage Act 1949 set out the required formalities for marriages that take place in the Church of England or where they are conducted in a register office, registered building or approved premises. They include such things as the timing and publishing of marriage banns and that the premises and person conducting the ceremony are duly licenced.
   
   
4. Either of them were already lawfully married or in a civil partnership at the time of the marriage.
   
   If a party was already married or in a civil partnership, any second marriage they entered into will be void regardless of whether that was known by either of them at the time.
   
   Although there is no absolute bar to making a financial remedy claim in cases of bigamy, the parties’ conduct in committing bigamy may be reflected in the financial order that is made, particularly where it is seen as an attempt to enrich in a way that would not have otherwise been possible.
   
   
5. A polygamous marriage conducted outside the jurisdiction but either of them had been domiciled in England and Wales at the time of the marriage.
   
   Polygamous marriages will only be considered valid in England and Wales if both parties were domiciled in the country where the polygamous marriage was permitted and took place. If either of them were domiciled in England and Wales at the time of the marriage, then it will be considered void.

Voidable marriages

A marriage will be considered voidable where one of the following applies:

1. Non-consummation of the marriage either through incapacity or wilful refusal.
   
   There is a presumption of consummation and therefore evidence would need to be adduced to rebut this.
   
   
2. Either party did not validly consent to the marriage either as a result of duress, mistake or mental incapacity.
   
   There may also be other instances where a lack of consent can be shown such as where a party is drunk or under the influence of drugs.
   
   
3. Either party was suffering from a mental disorder within the meaning of the Mental Health Act 1983 and was therefore unfit to enter into a marriage.
   
   
4. The respondent had a venereal disease in a communicable form or was pregnant with another person’s child which the applicant was unaware of at the time of marriage.
   
   
5. An interim gender recognition certificate has been granted to either party following the marriage or the respondent has an acquired gender under the Gender Recognition Act 2004 at the time of the marriage.

Conditions on applying for a nullity order where the marriage is voidable

A nullity application must be started within three years from the date of the marriage if it is based on any of the following:

• Lack of consent
• Either party was suffering from a mental disorder
• The respondent had a venereal disease in a communicable form or pregnant by someone other than the applicant;
• The respondent had an acquired gender at the time of marriage.

If those proceedings are not issued within three years of marriage, the court can grant permission if the judge is satisfied that the applicant had at some time during that period suffered from a mental disorder within the meaning of the Mental Health Act 1983, and in all the circumstances of the case it would be just to grant permission to allow the proceedings.

Where the proceedings, however, are based on the issue of an interim gender recognition certificate, those proceedings must be brought within six months of the issue of the certificate.

A court, however, will not make a nullity order in relation to a voidable marriage if it can be shown by the respondent that:

• The applicant, knowing they could apply for the marriage to end, continued the relationship in a way that led the respondent to reasonably believe they would not end it
  
  and
  
  
• it would be unjust to grant the nullity order.

Non-marriage

There are some ceremonies that cannot be considered a marriage of any kind, not even a marriage that is void, and will therefore be treated as a ‘non-marriage’. Although there is no definition or test for ‘non-marriage’, where there is dispute, a Declaration of Marriage can be applied for under section 55(1)(a) of the Family Law Act 1986.

If the marriage is declared a ‘non-marriage’, financial claims cannot be brought under the Matrimonial Causes Act 1973. The only claims that could be made would be under the Trusts of Land and Appointment of Trustees Act 1996 or Schedule 1 of the Children Act 1989 if there are children.

Additional points of note

Unlike an application for divorce or dissolution of a civil partnership, a nullity application can be made within the first year of marriage or civil partnership.

An application for divorce, judicial separation or dissolution of a civil partnership can still be made in relation to void or voidable marriages where no application for a nullity order has been issued.

A marriage that is voidable revokes any previous will in the same way a valid marriage would, regardless of whether a nullity order is subsequently granted. A void marriage, however, is treated as if the marriage never existed in the first place and therefore does not revoke any prior will.