Annulling a Marriage

Divorce and Family Law expert Holly Skelton takes a look at annulling a marriage. What is an annulment and why might it sometimes be preferable to divorce?

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Difference between annulment and divorce

Divorce brings a marriage to an end, whereas annulling a marriage is a declaration by the court that the marriage was either:

not legally valid; or
had subsequently become legally invalid.

Put simply, if the court grants an annulment, the marriage is treated as if it had never taken place.

You can apply for an annulment anytime, whereas you cannot divorce within the first year of marriage. However, the longer the time before seeking an annulment, the more likely you will have to explain the delay.

Please note that the rules for dissolving a civil partnership are slightly different, although you use the same court forms.

When can you annul a marriage?

Broadly annulling a marriage involves satisfying two tests.

First, there is a residence requirement. The court will only grant an annulment if:

you or your spouse have either lived in England or Wales for at least a year; or
had a permanent home in England or Wales for at least 6 months.

Second, assuming you satisfy the residence test, the marriage must either:

have never been legally valid (‘void’); or
was legally valid, but satisfies one of the reasons making it ‘voidable’.

What is a void marriage?

A void marriage means that you were never legally married in the first place. Despite that, there are some situations – for example, if you wish to marry again – where a ‘decree of nullity’ is required to prove your unmarried status.

Examples of void marriages include where:

the couple are too closely related;
one or both parties were under 16;
one or both parties were already married or in a civil partnership with somebody else.

What is a voidable marriage?

If the marriage took place after 31 July 1971, it is voidable if you satisfy one of the grounds set out in Section 12 of the Matrimonial Causes Act 1973, namely:

that the marriage is unconsummated owing to the incapacity of either party to consummate it.*
that the marriage is unconsummated owing to the wilful refusal of the respondent to consummate it.*
that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.
that at the time of the marriage, either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage.
that at the time of the marriage, the respondent was suffering from venereal disease in a communicable form.
that at the time of the marriage the respondent was pregnant by some person other than the petitioner.
that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage.
that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.

[* Does not apply to the marriage of a same sex couple.]