Couple Obtains Annulment of First Marriage In Order to Marry Again
July 18, 2019Mark Feigenbaum
In a recent Ontario case, a couple sought the annulment of their first marriage in order to marry again.
What Happened?
The woman brought an application in which she sought a declaration that her marriage to the man was a nullity. The man consented to the declaration being sought. The basis for this claim was that the man was married to someone else at the time the woman and man married the first time.
The man married another woman (the “ex-wife”) on November 29, 2011. They separated in 2012. The man initiated the divorce proceedings in 2013.
A divorce order was granted in that proceeding on December 5, 2018. The certificate of divorce discloses that the divorce took effect on January 5, 2019.
The woman and man understood that the process took approximately five years to complete because the man’s counsel in the divorce proceeding had difficulty locating the ex-wife.
There was no contact between the ex-wife and the man for many years. Both the man and the woman assumed that his marriage to the ex-wife had been dissolved.
On August 4, 2017, the woman and man got married.
Following their marriage, the man applied to sponsor the woman as a spouse for immigration purposes.
The man received correspondence from Immigration, Refugees and Citizenship Canada that he was not eligible to sponsor the woman because at the time of his marriage to her he was not divorced from the ex-wife.
As a result, the woman and man sought an order declaring that their marriage was a nullity so that they could marry again, this time legally, and have the man apply again to sponsor his spouse for immigration purposes.
Annulment vs. Divorce
The difference between obtaining an annulment versus a divorce has been set out in previous case law as follows:
“Whereas a divorce is based on a cause arising after a valid marriage has come into existence (eg. adultery, cruelty, supervening insanity, or marriage breakdown), a decree of nullity is based on a cause existing at the time of the marriage (ie. a prior existing marriage, relationship within the prohibited degrees, insanity at the time of marriage). And while a decree of divorce dissolves the marriage as from the date when the decree becomes absolute (ex nunc), a decree of nullity, depending on the ground of annulment, either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc).”
Decision
The court set out the various grounds for annulment in Canada.
First, it stated that the federal Annulment of Marriages Act provides the Superior Court of Justice with the jurisdiction to annul a marriage.
The court noted that one ground for annulment is a previously existing marriage, citing case law that states:
“A previous existing marriage is a common law ground for annulment, and the marriage of a person who is still married to someone else is void.”
In addition, s. 2.3 of the federal Civil Marriages Act prohibits a person from contracting a new marriage until every previous marriage is dissolved by death, divorce or declared null by a court order. The court stated:
“A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place.”
After reviewing the evidence, the court found that on the date that the woman and the man purported to marry, the man was already married to another person.
As a result, and on the basis of the consent of the parties, the marriage entered into between the woman and the man on August 4, 2017 was declared void by reason of the prior existing marriage of the respondent.
The court therefore ordered that the marriage be annulled.
The couple is now free to be married again, legally, and to reapply for immigration purposes.
Get Advice
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.
