A divorce is the dissolution of an existing marriage, whereas an annulment is a declaration that the marriage is void ab initio i.e. the marriage is invalid from the onset. The grounds for divorce are clearly stated in s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). On the other hand, the common law in Canada currently dictates the grounds for the annulment of a marriage. Non-consummation, marriage without consent and marriage for solely for immigration purpose are often cited as possible valid grounds for the annulment of a marriage.
- Non-consummation: Canadian courts currently hold that the inability to consummate a marriage is a valid ground for the annulment of a marriage. In Z. v. X.J. 2020 BCSC 1336, the marriage was held void and null because the respondent was incapable of having an intercourse with the claimant. In Razavian v Tajik 2019 ONSC 5662, an order of annulment of the marriage was granted based on the non-consummation of the marriage.
- Marriage without Consent: In Said v Said  B.C.J. No. 1146, it was held that marriages may be invalidated and consequential relief granted, not because of the presence of fraud but rather because of the absence of consent. A person will be held to have consented to marriage even if he or she is laboring under a mistake as to the attributes of the other partner, or the legal effects of the marriage. It would seem that the only mistakes sufficiently fundamental to negative consent to a marriage are a mistake as to the nature of the actual ceremony being entered into, or a mistake as to the identity of the other partner. Therefore, a marriage could be annulled due to the absence of consent. Nonetheless, if there were mistakes in relation to the attributes of a partner, such as: his/her financial status, or his/her tidiness, such mistakes will not result in absence of consent to the marriage. The absence of consent could result from the mistake as to the nature of the wedding ceremony or mistake as to the identity of the partner.
- Marriage for solely immigration purpose: In Iantsis (Papatheodorou) v. Papatheodorou  O.J. No. 1642 the court held that a marriage will not be declared void where one or both of the parties have gone through a ceremony for a motive other than marriage, such as, to affect the immigrant status of one of the parties. The court clarified that neither a fraudulent nor an innocent misrepresentation will of itself affect the validity of marriage unless the misrepresentation induces an operative mistake, e.g., as to the nature of the ceremony, or deception as to the identity of one of the persons to the marriage, as when A is induced to marry B, believing that she is marrying C. Nonetheless, marriage for solely for immigration purpose could negatively impact the non-Canadian partners immigration status in Canada.
If you require more information on whether to seek a divorce or an annulment, feel free to contact CALGARY family lawyers & Calgary Divorce LAWYERS at Osuji & Smith Lawyers.
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