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The difference between a divorce and an annulment

By Natalie Hermann

While the results of a divorce and an annulment of a marriage are essentially the same, the processes are very different. That is because a divorce terminates a legally valid marriage while an annulment treats the marriage as if it never existed. One common factor is that people should seek legal advice when going through either process.

Limited circumstances lead to annulments

When a marriage is annulled, the court will issue a Nullity Decree. It takes effect immediately, declaring that the marriage did not exist or was not valid.

Annulments are granted in limited situations, including:

  • Your spouse was already married when they entered into the union.
  • You were forced to marry your spouse under threat of physical violence or under duress.
  • You were seriously under the influence of alcohol or drugs at the time of your marriage.
  • The person you married fabricated their identity.
  • You were unaware your spouse was unable to consummate the marriage.
  • You were under the legal age of 18 when you got married and you did so without parental consent.
  • You and your spouse are too closely related.
  • Your marriage ceremony did not include the essential requirements for Alberta, such as having two witnesses.

When an annulment is granted that does not mean spouses are absolved of their status and responsibilities as parents if children are involved. The ex-partners can also bring forth claims against one another related to property and support.

Religious annulments fall short

Some religious organizations grant marriage annulments but they are not the same as a legal annulment. A religious annulment is only valid within the religion itself – you will still be considered legally married unless you obtain an annulment from the secular court.

Without a legal annulment or divorce of a marriage, any future marriage will not be considered legally valid.

Three grounds for divorce

There are three legally accepted grounds for divorce in Alberta. According to the province’s Divorce Act, they are separation, adultery and cruelty.

Separation occurs when you and your spouse have lived apart for at least one year before a divorce judgment is made by the court. Either party can start the divorce action during this period but must wait until the year has passed to file for a divorce.

The term “separation” can be misleading, as it does not demand that you live in separate locations. You both can be in the same home during the separation year, provided you can provide evidence that you otherwise were not a couple during this time.

Adultery occurs when a married person has sex with someone other than their spouse. The person who has been cheated on can file for divorce any time after they become aware of the infidelity. Adultery must be proven in court, either with evidence or through an affidavit signed by the person who committed the act.

Cruelty is when either spouse commits physical or mental cruelty to the other spouse, including:

  • physical violence;
  • constant verbal abuse (for example, insults or threats);
  • drunkenness; or
  • excessive drug use.

The cruelty must be so severe that it makes living together impossible and evidence of the cruelty is required.

Divorces can be uncontested

In an uncontested divorce, both parties agree to dissolve the marriage without resorting to dispute resolution processes or the court. The spouses typically write a separation agreement together and then sign off for filing.

These types of divorce proceedings can only occur if the ex-partners can still communicate effectively. If everything goes smoothly the process can be wrapped up in approximately three months for significantly less cost than a contested divorce.

Uncontested divorces can occur when three issues have been settled:

  • decision-making responsibility (formerly known as custody);
  • parenting time (formerly known as access); and
  • support payments.

The Alberta Courts website has instructions and forms for an uncontested divorce, though be advised the forms do not deal with property division.

Contact us for assistance

Whether you are seeking a Nullity Decree or a Certificate of Divorce, the experienced team at Demas Schaefer Family Lawyers can help you navigate the laws governing both processes. We can assist in preparing the necessary documents and advise you on such issues as alimony, child support, custody and property division.

Contact us for a free consultation. Demas Schaefer Family Lawyers serves all of Northern Alberta. We have represented clients in Edmonton, Leduc, Wetaskiwin, Sherwood Park, Spruce Grove, St. Albert, Red Deer, Provost, Grande Prairie, Peace River, Edson, Hinton and Cold Lake. We can appear both in person and remotely to accommodate all of your needs.

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