We’ve covered a large number of issues on our blog over the years, but it has been some time since annulments have been covered. Unlike a divorce, an annulment is a declaration that a marriage never existed (rather than a legal ending of a marriage, such as in a divorce). Annulments are also not nearly as common as divorces, and a recent decision from the Supreme Court of British Columbia has provided us with an opportunity to look at how the courts address annulments in certain situations.

What is an annulment?

As we mentioned above, an annulment is a declaration from the courts that a marriage is not recognized – making it as though it never happened in a legal sense. There are a limited number of reasons why a marriage may be annulled.

  1. The couple was unable to consummate the marriage
  2. One of the people married was already married
  3. The married parties are related
  4. One of the parties in the marriage is underage
  5. The marriage was not properly consented to by one of the parties

Other reasons for an annulment might be factors such as the person who officiated the marriage was not allowed to do so.

In today’s situation, we look at a situation where an annulment was sought because the parties did not, or could not, consummate the marriage.

The history of annulment due to inability to consummate the marriage

While the parties involved in the trial were married in 2018, laws concerning the inability to consummate a marriage have existed for over 150 years. Since 1857, courts in Canada have assumed jurisdiction over annulments, and in British Columbia (and Ontario) the lack of capacity for a spouse to consummate a marriage is grounds to void a marriage.

The court noted in this case that the facts upon which the annulment is sought must have existed at the time of the marriage, rather than after the marriage occurred. If the grounds only arose after the marriage occurred, it would mean the couple would need a divorce rather than an annulment.

Was the husband unable to consummate the marriage at the time it occurred?

The parties were married on August 11, 2018. The wife sought an annulment on the grounds that the marriage had not yet been consummated due to the husband’s impotence. The burden of proof in this case fell on the wife, who was required to satisfy the court that the husband was incapable of consummating their marriage.

Traditionally, courts in Canada stated that the inability to consummate a marriage must be a permanent issue, and not one that could be cured. More recently, courts have lessened the burden. A 2003 decision from British Columbia stated that impotence could arise from physical or psychological incapacity, meaning the spouse who is impotent could be able to perform intercourse with others, but not with their spouse.

The court received affidavits from the parties, and while the husband submitted one, he did not challenge the wife’s statement that he was incapable of consummating the marriage. The wife’s affidavit stated that they attended pre-marriage counselling sessions, where the husband did not mention any sexual health issues. The parties spoke about having kids together, but did not live together or have sexual intercourse prior to their marriage. After they were married, the wife said the husband was not able to maintain an erection, a problem that persisted for close to a year. Eventually, they couple spoke to a doctor who found no medical issue preventing the consummation of a marriage.

The facts as presented by the wife, and unchallenged by the husband, were enough to lead the court to conclude that the husband was not able to consummate the marriage with the wide, and as such, the marriage was determined to be null and void.

The end of a marriage is always difficult and emotional. The experienced and compassionate divorce lawyer at NULaw can make the process easier by providing outstanding legal guidance and ensuring your interests and rights are protected so that you can focus on moving on with your life. Contact us online or at 416-481-5604 to book a consultation.

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