There are two ways to dissolve a marriage. The most common is divorce but it is also possible to get it annulled under specific circumstances. This guide answers many of the questions relating to annulment, including what circumstances qualify you for annulment, why choose annulment, what the process is and how it affects children.
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What is a nullity of marriage order?
With a nullity of marriage order, the marriage is treated as if it never existed. There are two types of nullity:
- Void marriages – the marriage was not legal in the first place
- Voidable marriages – the marriage is legally valid until it is annulled (on the grounds of the marriage never being consummated, for example)
How is a nullity of marriage order different from divorce?
A divorce signals the end of a marriage. Both parties consider themselves to have been married and legally they are considered previously married. Individuals who have obtained nullity of marriage orders can consider themselves to have never been married.
The following points mark some of the key differences between divorce and annulment:
- Annulment requires a degree of proof that applying for divorce does not typically ask for.
- An annulment can be sought immediately after marriage whereas divorce proceedings cannot be started until married for one year.
- Annulments commonly occur soon after marriage (on the grounds of non-consummation, for example) while divorces can obviously take place many years later.
What qualifies me for an annulment (what grounds can you get annulled)? In short, the marriage must be either ‘void’ or ‘voidable’.
Void marriage
A marriage is considered void if it was never legal in the first place. Void marriages include:
- Where the parties were closely related.
- Where one (or both) parties were under 16 at the time of the marriage.
- Where one (or both) parties was already married or in a civil partnership.
- Where the legal requirements for the ceremony were not followed (including not using a licensed premises)
If a marriage was not legal, then the law says it never existed, but you may still need to get legal paperwork to confirm this should you want to get married in the future.
Voidable marriage
A marriage is voidable if:
- It has never been consummated (there has never been sexual intercourse between the parties) – this rule does not apply for same-sex couples.
- One or both parties did not properly consent (they were under the influence of drugs, or were forced into it, for example).
- One of the parties had a sexually transmitted disease at the time of the marriage.
- The woman was pregnant by another man at the time of the marriage.
- An interim gender recognition certificate has been issued to either party to the marriage after the time of the marriage.
- One of the party’s gender at the time of the marriage is no longer their affirmed gender.
If your marriage is voidable, you can apply for an annulment.
How long after the marriage can you apply for a nullity of marriage order?
Nullity applications are usually made soon after the marriage. Unlike a divorce, where you must wait a full year before applying, an nullity application can be sought immediately following the marriage.
In the case of gender reassignment, there is a period of six months allowed from the date of a gender recognition certificate.
If you want to make a nullity application years after the marriage, you will be expected to provide good reasons for the delay.
Why choose a nullity application over divorce?
Nullity applications are for those situations where it is important to you that the marriage never happened. This can be because it was a traumatic situation forced upon you, or for religious reasons regarding future marriage.
It should be noted that in these latter cases, there is a difference between a legal annulment as described here, and an annulment in the Catholic Church.
Because a divorce cannot be applied for within the first year of marriage, those needing to undo their marriage sooner may turn to annulment. It is not a ‘quick fix’ for a marriage in trouble during the early days, however, and there must be a legal reason as detailed earlier in this article for making a nullity application.
How much does a nullity application cost?
Simply filing a nullify petition to the court (the minimum needed) currently costs £593.
If there are complications (for example, the other party doesn’t agree to the annulment), then the petition may need to be settled between solicitors or even go to court. Read more about legal costs.
What is the process for a nullity application?
Making an application for a nullity of marriage order follows the same process as that for a no-fault divorce. An application for a nullity of marriage order is served on the respondent and they must declare whether they intend to defend the nullity application (for example, they believe the marriage to be valid and so wish to dispute it). If they do, the court will make directions accordingly.
If a nullity of marriage order is sought due to non-consummation of a marriage, the court may require medical examination. Should that examination prove consummation, the application cannot proceed.
If the respondent agrees with the nullity application and chooses not to dispute it, then it will progress similarly to a no-fault divorce until the ‘conditional order’ and final ‘nullity of marriage order’ is made.
If the respondent is likely to dispute a nullity application, then a divorce application may be preferable.
How likely is a nullity of marriage order?
If your marriage falls under the definitions of void or voidable as described earlier in this article, and it is within the first three years of the marriage, then a nullity of marriage order is possible. In circumstances where the marriage is easily proven to be void (for example the marriage ceremony was not legal, or a spouse was under the age of 16) the procedure for nullity should be straightforward.
If it is likely to be difficult to prove that the marriage is voidable (for example, that you did not give consent to the marriage) or you believe it will be contested by the other party, then you should consult legal advice to understand your options.
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What are the advantages and disadvantages of a nullity application?
In many cases, the spouse seeking a nullity of marriage order, in every way they can, should disassociate themselves from a marriage they regret entering. Doing so by divorcing leaves a history behind them that they will be forever connected to – of an ‘ex-husband’ or ‘ex-wife’ and of them being a ‘divorcee’. A nullity of marriage order offers the advantage of rewinding the clock so they can legally and emotionally start afresh.
However, a nullity application can sometimes be more difficult than divorce. If the annulment is disputed, the applicant may have to undergo the process of proving that the marriage is voidable – not something a spouse would have to do if applying for a no-fault divorce.
There is also a myth that if the marriage is annulled, there can be no financial settlement. In fact, a financial settlement following an nullity of marriage order can be brought successfully to court.
There is no legal advantage or disadvantage to either divorce or annulment over the other.
Can I make a claim for financial settlement in a nullity application?
Yes. However, in most cases a nullity of marriage order tends to be granted soon after the marriage takes place so the division of assets is likely to return both parties to the financial positions they were in before they married.
Does nullity apply to civil partnerships and same-sex marriage?
With two exceptions, a nullity application is an equal option in both civil partnerships and same-sex marriages.
Those exceptions are:
- Same-sex marriages and civil partnerships cannot utilise the ‘non-consummation’ rule for applying in nullity cases.
- Civil partnerships cannot apply the rule regarding sexually transmitted diseases as a reason for annulment.
Can my spouse contest a nullity application?
Yes. If your spouse believes that the marriage is valid, then they can dispute the nullity application and defend the marriage in court.
Can a nullity or marriage order be reversed?
No. Once it is finalised, it is as if the marriage never happened and cannot be reversed.
If there is a desire by both parties to ‘undo’ an annulment, then they are free to marry each other.
Am I entitled to the same financial settlement with a nullity application as divorce?
Yes. You can apply for a financial settlement and any appropriate child maintenance as part of the nullity process in a similar way to a divorce. However, in most cases a nullity of marriage order is granted soon after the marriage takes place so the division of assets is likely to return both parties to the financial positions they were in before they married.
What is a ‘void’ marriage? How is it different to a voidable marriage?
A void marriage is one which was never legal. It differs from a voidable marriage in that legally there was never a marriage in the first place.
While there is no legal requirement to make a nullity application in the case of a void marriage, the legal paperwork may be of help, especially if seeking a financial settlement as part of the proceedings.
The section earlier in this article titled ‘What qualifies me for a nullity of marriage order?’ defines the situations that constitute a void or voidable marriage.
What is an annulment in the Catholic church? Is this the same as a legal nullity of marriage order?
The Catholic church considers marriage at a different level to the requirements that form a legal marriage in the United Kingdom. To this end, a nullity of marriage order is not the same as an annulment in the eyes of the Catholic church although the reasons they can be brought are similar.
For those in the religion, it may be important to apply for a church annulment in addition to a legal one. This involves appealing to the local church Tribunal and going through a lengthy process of discussion and understanding that is not dissimilar to a level of counselling.
Does getting a nullity of marriage order affect my children’s legitimacy?
No. Prior to 1949, children of annulled marriages were often considered illegitimate as a consequence (despite having lived potentially years as a legitimate child). However, the law was changed in that year to ensure that the legitimacy of children was left unchanged in all cases of annulled marriages, whether from being void or voidable.
Similarly, the Catholic church agrees that the legitimacy of children is not affected by annulment.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
