What is The Difference Between Divorce and Annulment?

To summarise, an annulment is a legal procedure to dissolve a marriage on the basis that the marriage never properly existed in the first place. Divorce on the other hand, is a legal procedure to dissolve a proper marriage.

A nullified marriage can be considered an alternative to a divorce. However, there is a difference in the qualifying grounds required. To find out more, contact us.

In a previous article, we highlighted some qualifying grounds for a divorce. In this article, we will look at what’s required to nullify a marriage.

What does it mean by “never properly existed?”

According to Chapter 3 of the Women’s Charter, annullable marriages can be categorised into either ‘void’ or ‘voidable’ marriages. The difference between these two is that void marriages are automatically annulled, while voidable marriages are not, and can still be challenged.

However, this only applies to all marriages registered after 1st June 1981.

Here’s a list of void marriages according to Section 105 of the Women’s Charter:

A marriage between persons who are Muslims. (Muslim marriages are not applicable in this charter.) – s. 3(4)

A marriage with someone who is already lawfully married to a spouse under any law, religion, custom or usage. – s. 5(1) & s. 11

A marriage between persons below the age of 18 years, unless specially authorized by the Minister. – s. 9

A marriage within specific degrees of kindred and affinity (as defined in the First Schedule of the Women’s Charter). This also include cases within the parameters of incest. – s. 10

A marriage that has not been solemnized in the presence of 2 or more witnesses either on the authority of a valid marriage license, or by the Registrar or someone who has been granted a license to solemnize the marriage. – s. 22

Here’s a list of voidable marriages according to Section 106 of the Women’s Charter:

Unconsummated marriages, due to one party being either unable or unwilling to consummate it. – s. 106(a) / s. 106(b)

A marriage that has not been validly consented to, due to one party consenting under duress, by mistake, or with a mental disorder, etc. – s. 106(c)

A marriage that was validly consented to, but at the time of marriage, one party was suffering from a mental disorder that left them unfit for marriage (as defined in the Mental Health (Care and Treatment) Act 2008) – s. 106(d)

A marriage where, at the time of marriage, the Defendant was suffering from a communicable sexually-transmitted disease. – s. 106(e)

A marriage where, at the time of marriage, the Defendant was pregnant by someone other than the Plaintiff. – s. 106(f)

Under Section 107 of the Women’s Charter, an annulment on the grounds of s. 106(c), (d), (e) or (f) will be invalid unless the annulment proceedings began within 3 years from the date of the marriage. – s. 107(2)

An annulment on the grounds under s. 106(e) or (f) will be invalid unless it can be shown that the Plaintiff was, at the time of marriage, ignorant of the facts alleged by the grounds. – s. 107(3)

What happens in an Annulment?

Either the husband or the wife in the marriage must file a Writ of Nullity. This person will then be the Plaintiff and the other party, the Defendant.

To challenge the annulment, the Defendant will have to prove to the court that:

The Plaintiff, knowing that they could have avoided the marriage, decided not to and chose to proceed with marriage. – s. 107(1)(a)

It would be unfair to the Defendant if the marriage were annulled depending on the circumstances. – s. 107(1)(b)

What happens after the Annulment?

If a Plaintiff is successful in proving that the marriage is annullable, the court will grant a Judgement of Nullity, dissolving the marriage. However, any children born in the marriage will still be considered legitimate children.

If you are in a situation that requires the expertise of an experienced and compassionate lawyer, please contact us.

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