Annulment Vs Divorce: What’s The Difference and Which One Applies?

AAAnnulment vs Divorce and Financial Settlements

If your marriage has broken down, you might assume divorce is the only option. But in some rare cases, annulment is also a possibility.

The key question is whether or not the marriage was legally valid in the first place. An annulment does not simply end a marriage. It either confirms that the marriage was never legally valid or declares that it should no longer be treated as valid because of a serious legal flaw that existed at the outset. Divorce, on the other hand, ends a legally valid marriage and generally speaking, offers different options for financial remedies.

What Is Divorce?

Divorce is the legal process that brings a valid marriage to an end. The court accepts that the marriage existed and then formally dissolves it.

Under the law of England and Wales, divorce is now based on a no-fault system. You no longer need to blame your spouse or prove wrongdoing. You simply state that the marriage has irretrievably broken down.

Divorce is available to any married couple, regardless of how long they have been married, provided the marriage is legally recognised in England and Wales.

Once a divorce is granted, the court has wide powers to deal with financial arrangements, pensions, property, and ongoing maintenance. Divorce does not automatically resolve these issues, but it opens the door to legally binding financial orders.

What Is Annulment?

An annulment is very different. Instead of ending a valid marriage, an annulment declares that the marriage was never legally effective, or that it was so fundamentally flawed that it should not be treated as valid.

In legal terms, annulments fall into two categories: void marriages and voidable marriages.

A void marriage is one that was never legally valid at all. A voidable marriage is legally valid unless and until it is annulled by the court. This distinction affects time limits, eligibility, and the type of orders the courts are likely to make.

When is a Marriage Void?

A marriage is void if it never met the basic legal requirements to exist. In these cases, the court is saying that no lawful marriage ever took place.

This applies in a few limited but clear situations, such as:

• One or both parties were under 18 at the time of the marriage. Different rules applied before February 2023, when 16 and 17-year-olds could marry with parental consent.
• The parties were closely related, such as siblings or certain close family relationships where marriage is prohibited.
• One party was already legally married or in a civil partnership at the time of the ceremony.
• The formalities of marriage were not complied with, meaning the ceremony did not meet the legal requirements for a valid marriage in England and Wales. For example, the ceremony did not take place in a legally approved venue, or it wasn’t conducted by a legally authorised person.

If a marriage is void, either party can apply for an annulment at any time. There is no time limit, and the court does not have discretion to “overlook” the issue once it is established.

One real-life example in 2012 was MA v JA, where the court considered whether a religious ceremony led by an imam in a mosque counted as a valid marriage. The court concluded that because the statutory requirements weren’t met, the ceremony did not create a legally recognised marriage. The case is often cited in disputes involving religious-only ceremonies.

When A Marriage Is Voidable

Voidable marriages are more complicated. These marriages are legally valid unless and until one party successfully applies to the court for annulment. If no application is made, the marriage remains valid.

Here are some common scenarios where a marriage may be voidable:

• Lack of proper consent, where one party did not freely and fully agree to the marriage.
• Duress or pressure, including emotional, psychological, or physical coercion. Forced marriages usually fall into this category.
• Mistake as to the nature of the ceremony, where a party did not understand they were entering into a legally binding marriage.
• Mental disorder or incapacity, where a party was unable to understand the nature of marriage at the time.
• Non-consummation, which is narrowly defined and does not apply where the marriage has broken down for other reasons.

Voidable marriages have important limitations. There are time limits, and in some cases, continuing to live together after discovering the issue can prevent annulment. The court will also look closely at the evidence, as these claims are often contested.

A leading case is Hirani v Hirani (1983), which involved a forced marriage. The Court of Appeal held that consent obtained through pressure was not real consent. The marriage was considered voidable and could be annulled.

Financial Claims After Annulment or Divorce

This is an area people frequently misunderstand. Many people assume that annulment means there are no financial claims. That is not correct. The court can still make financial orders following an annulment, including orders relating to property, lump sums, and maintenance.

However, the court might approach things a bit differently depending on the circumstances of the case, particularly where the marriage was short or never fully established.

In divorce cases, financial remedies are more routine and well-trodden. The court has a broad discretion and clear statutory guidance on how to approach fairness.

If finances are a concern, it is important not to assume that annulment removes risk or obligation.

Religious Annulments and Civil Law

Another point of confusion is the difference between religious annulments and legal annulments. A religious annulment has no effect under English law. Even if a religious body declares your marriage void, you are still legally married unless and until a civil annulment or divorce is granted by the court.

This can catch people out, particularly where they believe a religious process has resolved their legal status. It has not. Only a court order recognised in England and Wales can change your legal marital status.

Annulment Vs Divorce: Which One Applies to You?

In most cases, divorce will be the appropriate route. Annulment applies only in quite narrow legal circumstances and cannot be used simply because the marriage was short, unhappy, or regretted.

If you are unsure which applies, the starting point is to look at whether the marriage was legally valid at the time it took place and whether any recognised grounds for annulment exist. It is not uncommon for people to assume annulment is available, only to find that divorce is the only realistic option.

The best person to make this assessment is an experienced family law solicitor. They can assess whether annulment is legally available and help you decide whether divorce or annulment is the more appropriate and practical route.

Speak to Tyrer Roxburgh

If you are trying to work out whether annulment or divorce applies to your situation, you should not rely on assumptions or online myths. At Tyrer Roxburgh, we can help you determine which legal route is appropriate for you, based on the facts of your case.

If you would like advice on annulment vs divorce under the law of England and Wales, contact Tyrer Roxburgh to speak to our experienced team of family solicitors.