Annulment vs Divorce: Who Qualifies for a Decree of Nullity?

For some, the idea of ending a marriage through divorce carries emotional or cultural weight. Annulment—formally known as nullity—offers a different path. If granted, it treats the marriage as if it never legally existed, restoring your status as single and allowing you to remarry without the label of “divorced.” However, the law is strict about when annulment is available, and the process is not as widely understood as divorce.

Void vs Voidable Marriages: What’s the Difference?

The law distinguishes between marriages that are void and those that are voidable.

• Void marriages are never legally valid. Common reasons include:

  • Bigamy: One party was already married or in a civil partnership at the time of the ceremony.

  • Under-age: One or both parties were under 16.

  • Prohibited degrees: The parties are closely related (for example, siblings or parent and child).

  If your marriage is void, it is treated as if it never existed from the outset. You do not need to prove fault or wrongdoing—just that one of the legal bars existed at the time of the ceremony.

• Voidable marriages are valid until a court order says otherwise. Grounds include:

  • Non-consummation: The marriage has not been consummated (only available for opposite-sex marriages).

  • Duress: One party was forced or coerced into the marriage.

  • Mental incapacity: One party was incapable of understanding the nature of marriage.

  • Concealment of a sexually transmitted disease: If one party knowingly concealed an STD at the time of marriage.

  With voidable marriages, the marriage is treated as valid until the court makes a nullity order.

How to Apply for Annulment

The process is similar to divorce but with some key differences:

1. File a Nullity Application (Form D8N):
   You must submit this form to the family court, setting out the grounds for annulment. The application should be made within three years of the marriage, except in rare cases where the court allows more time (for example, if you only recently discovered the facts).

2. Serve the Application:
   The application must be served on your spouse within 28 days. This is a strict deadline, and failure to serve correctly can delay or derail your case.

3. Apply for a Conditional Order:
   If your spouse does not contest the application, you can apply for a conditional order (previously called a decree nisi). If the court is satisfied with your evidence, it will grant this order.

4. Apply for a Final Order:
   After a short waiting period, you can apply for the final order (previously called a decree absolute). Only then is the marriage officially annulled.

Evidence: What the Court Needs

The court will expect clear, credible evidence to support your application. This might include:

• Marriage certificates and proof of age.

• Evidence of previous marriages or civil partnerships (for bigamy).

• Medical or psychological reports (for incapacity or STD concealment).

• Witness statements or correspondence (for duress or non-consummation).

If your spouse contests the application, the court may require a hearing and further evidence.

Financial Claims: What Are Your Rights?

Annulment does not leave you without financial protection. You can apply for the same financial orders as in divorce, including:

• Lump sum payments

• Property adjustment orders

• Spousal maintenance

• Pension sharing orders

The court will consider the same factors as in divorce, such as the length of the marriage, contributions, and needs. However, if the marriage is declared void, the court may take into account that the legal relationship never existed.

Case Note: A v B [2022] EWFC 1

In this case, the court declared a marriage void for bigamy after it emerged that one party was already married in Australia. The decision highlights the importance of full disclosure and the court’s willingness to annul marriages that breach fundamental legal requirements.

Common Pitfalls and Contentious Points

• Timing: Applications must usually be made within three years. Delays can be fatal to your case.

• Proof: The burden is on you to prove the ground for annulment. Vague or unsupported claims are unlikely to succeed.

• Non-consummation: This ground is not available for same-sex marriages or civil partnerships.

• Financial claims: If you need financial support, make sure to apply for financial orders before the final order is granted.

Practical Help: Caira’s Support

Preparing a nullity application can feel daunting, especially if you’re self-representing. Caira can help you draft Form D8N and the accompanying statement of case, ensuring your application is clear, complete, and ready for court.

Feel less anxious and more confident:
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Disclaimer: This blog post provides general information for educational purposes only. It is not legal advice. Outcomes can vary based on your personal circumstances.