What is nullity of marriage and how is it different from divorce?

Navigating marital issues and contemplating separation can often be a very emotionally trying time. Understanding the nuances of nullity of marriage (often referred to as annulment) and divorce can help you to find the right path forward. While both annulment and divorce bring an end to a relationship, they arise out of different circumstances and involve distinct legal implications.

There are two bases upon which an annulment may be granted. One is that the marriage is ‘void’ and the other is that it is ‘voidable’.

A marriage that is void was never valid, and it is treated as though it never existed. A marriage may be declared void for the following reasons:

• You and your spouse are too closely related
• Either you or your spouse was under the age of 18 at the time of your marriage (or under 16 if the marriage took place before 27 February 2023)
• Either you or your spouse was already lawfully married or in a civil partnership at the time of your marriage
• The legal formalities prescribed by the Marriage Act 1949 were not complied with.
• The marriage was a polygamous marriage that took place outside of England and Wales but neither of them had been domiciled in England and Wales at the time the marriage took place.

If a marriage is voidable, it remains a valid marriage until the nullity of marriage order is obtained. A marriage may be voidable if one of the following criteria are met:

• Your marriage was not consummated, because either you or your spouse was incapable of doing so or because you wilfully refused to do so. This does not, however, apply to same-sex couples.
• A lack of valid consent to the marriage, as a result of duress, mistake, unsoundness of mind or otherwise. This also does not apply to same-sex couples.
• At the time of your marriage, either you or your spouse had a mental disorder within the meaning of the Mental Health Act 1983, to such an extent that the individual was unfit to marry.
• At the time of your marriage, either you or your spouse had a venereal disease in a communicable form (i.e. a sexually transmitted disease).
• At the time of your marriage, your spouse was pregnant with another person’s child.
• Either you or your spouse had been issued with an interim gender recognition certificate under the Gender Recognition Act 2004 some time after the marriage had taken place.
• Your spouse’s gender at the time of the marriage had become their acquired gender under the Gender Recognition Act 2004.

What is the annulment process?

The annulment process begins with completing and submitting to the court a nullity application on paper. Once the application has been submitted, your spouse has 14 days to acknowledge receipt of it and confirm whether they agree to an annulment. In reality, it is not necessary for your spouse to agree, although it can prolong the process if they do not.

If your spouse confirms that they agree that the marriage should be annulled, you can apply for a ‘conditional order’ (or a ‘decree nisi’ if the date on your court notice is before 6 April 2022). A conditional order is a declaration from the court that it does not consider there to be any reason why the marriage cannot be annulled.

Once the conditional order has been made by the court, after 6 weeks you will be able to apply for a ‘final order’ (if the court issued your annulment application on or after 6 April 2022) or a ‘decree absolute’ (if the court issued your annulment application before 6 April 2022). The court will consider the reasons for the annulment application and if it does not consider there to be any reason why the marriage cannot be annulled it will make a ‘decree of nullity’ or ‘nullity of marriage order’, legally ending your marriage. If your marriage is ‘void’, it will confirm that you were never legally married in the first place.

How is annulment different to divorce?

An annulment involves a marriage which, in the eyes of the law, was never valid in the first place. Divorce, instead, acknowledges that a valid marriage existed and provides for the marriage to be ended by one spouse (or both spouses jointly) stating that the marriage has irretrievably broken down.

Whereas a divorce may only be applied for after at least one year of marriage, an annulment can be applied for at any time after the marriage has taken place if relying on one of the grounds for a void marriage. If you seek to rely on one or more of the abovementioned criteria for a ‘voidable’ marriage relating to lack of consent, a mental disorder, venereal disease, pregnancy or transitioning to a different gender, then nullity proceedings must be started within three years from the date of the marriage. If a nullity application is to be brought on the basis of an interim gender recognition certificate having been obtained after the marriage took place, proceedings must be issued within six months of the date of issue of the certificate. If proceedings are not started within that timeframe the court’s permission will be needed.

Following the Divorce, Dissolution and Separation Act 2020, or colloquially known as “no fault divorce”, coming into force on 6 April 2022, it is possible for a married couple to make a divorce application jointly. Nullity applications, however, cannot be made on a joint basis.

Financial claims

On making a nullity of marriage order (on the basis of a void or voidable marriage) or a divorce order, the court has the power to make the same range of orders under the Matrimonial Causes Act 1973. These include:

• An order for the adjustment of spouses’ ownership in property;
• An order for the sale of property
• A lump sum order
• A spousal maintenance order
• A child maintenance order; and
• A pension sharing order

When considering whether to make any of the above orders, the court will take into account a list of factors set out in the Matrimonial Causes Act 1973, section 25. These are the same upon annulment or divorce and include:

• The income, earning capacity, property and other resources which each of you has or is likely to have in the foreseeable future.
• The financial needs, obligations and responsibilities which each of you has or is likely to have in the foreseeable future.
• The standard of living enjoyed during the marriage.
• The ages of each of you and the length of the marriage.
• Any physical or mental disability of either of you.
• The contributions which each of you has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
• The conduct of each of you, if the court considers it would be unfair to disregard it.
• The value to each of you of any benefit that you will lose the chance to acquire as a result of the divorce.
• The financial needs of any child.
• The income, earning capacity, property and other resources of any child.
• Any physical or mental disability of any child.
• The manner in which any child was being educated and in which the couple expected the child to be educated or trained.

Importantly, if the marriage is deemed to be a “non-marriage” (i.e. a non-qualifying ceremony), as opposed to a void or voidable marriage, there is no entitlement to any financial claims under the Matrimonial Causes Act 1973. The only available legal recourse would be those afforded to unmarried individuals; for financial provision under the Trusts of Land and Appointment of Trustees Act 1996 and for financial provision for the benefit of children under Schedule 1 of the Children Act 1989.

How can we help

If you have doubt over the validity of your marriage or you are contemplating separation, our expert family team are here to help you and advise whatever your situation may be. Find out more about our family law areas of expertise or contact us when you are ready.