When you know that a mistake has been made you just want to wind back the clock and cancel the error so it as if the mistake never happened. It can be like that with some marriages. However, most people assume that their only option is divorce proceedings. Top London divorce solicitors advise that in order to start divorce proceedings you have to be married for at least a year. But 12 months can be a long time to wait.
So can you cancel a marriage? The answer is that you can although even in circumstances where cancelling the marriage is possible, many people wait and get divorced instead, often because they have not taken specialist advice from a London divorce solicitor before deciding on what to do. In legal jargon, it is not called “cancelling” a marriage but the annulment of a marriage.
Types of marriage
There are 3 types of marriage, namely:
• A voidable marriage; and
• A void marriage.
A void or a voidable marriage can be annulled.
What is a void marriage?
If a marriage is void, then it is as if the marriage was never validly formed and so, in the eyes of the law, it never happened.
Reasons why a marriage can be classified as void:
• The parties to the marriage are biologically related to one another, for example brother and sister; or
• Either the husband or the wife is under the age of 16 years ; or
• The marriage was not carried out by a registered person in a licenced venue; or
• At the time of the marriage, the husband or the wife was already married to another person and they had not first secured a valid divorce prior to their re-marriage
• At the time of the marriage the husband or wife was already in a civil partnership with another person and they had not first secured the dissolution of their civil partnership.
Even if the marriage is classed as a void marriage and therefore, in the eyes of the law, was never a marriage, you may still need paperwork to prove that the marriage was void, for example if you want to marry or to prove your single status for official purposes.
What is a voidable marriage?
The definition of a voidable marriage is a marriage that could be annulled by either the husband or the wife if they choose to do so. If neither the husband nor wife choose to start annulment proceedings, the marriage will remain valid.
There are a number of reasons why a marriage can be referred to as a voidable marriage:
• The marriage has not been consummated due to the husband or wife's incapacity; or
• The marriage was not been consummated due to the husband or the wife's wilful refusal; or
• There was a lack of consent on the part of either the husband or the wife. The lack of consent can be due to duress, mistake or unsoundness of mind or otherwise (such as drunkenness ); or
• At the time of marriage the husband or wife was suffering from a communicable venereal disease; or
• At the time of the marriage the wife was pregnant by someone other than the husband; or
• An interim gender recognition certificate has been granted to one of the parties after the marriage.
Are there any benefits to cancelling a marriage?
As experienced London divorce solicitors, whenever we get to discuss the options of applying to annul a marriage or starting divorce proceedings, we are asked what, if any, are the benefits of cancelling or annulling a marriage. There can be some benefits in applying for an annulment of the marriage rather than starting divorce proceedings, namely:
• There is no bar to petitioning for nullity within the first year of marriage. If you decide to start divorce proceedings, you have to wait until you have been married for at least 1 year before you can issue the divorce petition; and
• An annulment of the marriage can avoid the religious stigma that is experienced by divorcees in some communities; and
• An annulment of the marriage can avoid the cultural stigma that can be experienced by some if they are classified as a ‘divorcee’; and
• An annulment of the marriage still enables financial claims to be made but the family court may, when deciding how assets should be split, place greater emphasis on different factors that it would if either the husband or wife had started divorce proceedings and made a financial claim within the divorce proceedings; and
• If you can start annulment proceedings you do not need to wait a year before you can make a financial court application. If you wait to start divorce proceedings until you have been married for at least a year this could delay the determination of any financial claim.
How do you cancel a marriage?
In order to start nullity proceedings you have to issue a nullity petition and pay a court fee. The petition is sent to the other party of the marriage and they can object to the nullity petition if they have the grounds to do so. If there is no objection to the nullity petition the person applying for the annulment has to file a statement in support of their nullity petition. The marriage is only annulled after you receive your decree of nullity. If the marriage was a voidable marriage then it is vital to get a decree of nullity or a decree absolute of divorce prior to any remarriage.
Obtaining a religious annulment of the marriage
Some people think that because they secured a religious annulment of their marriage, that this will suffice for official purposes. Top London divorce solicitors advise that religious annulments carry no weight or standing in the law in the UK. Accordingly, whilst it maty be very important to you to obtain your religious annulment the secular document is required for official and legal purposes.
How can OTS Solicitors help?
If you are married and are considering a separation you may want to explore if you have the grounds to start annulment court proceedings or divorce proceedings and the benefits to you of either getting your marriage annulled or starting divorce proceedings and securing a decree absolute of divorce. Sometimes acting quickly works to your personal and financial advantage whereas, in other situations, taking your financial, personal and Immigration status issues into account it can be sensible to wait. The prudent thing to do is to get expert legal advice so that you know what your options are and understand your rights.
For advice and help on starting annulment court proceedings or divorce proceedings please call us on 0203 959 9123 to discuss how we can help you.
Posted on: Friday, 21 December, 2018