A breakdown of marriage can be an emotional and stressful time. Knowing what options you have can help you navigate this difficult time in your life, and there are two options when ending a marriage: divorce and annulment.
In this guide, we’re explaining the differences between them and which one applies to you.
What is an Annulment?
An annulment is a declaration by the court that a marriage or civil partnership has either become legally invalid or was not legally valid to begin with. An annulment acts if the marriage or civil partnership had never in fact occurred and removes the marriage from the record. Proceedings for this are quite rare but can be appropriate in certain situations.
What is a divorce?
Divorce is the process of ending a marital status of a couple. The financial ties and responsibilities that are associated with a marriage will remain intact in a divorce until a financial settlement is agreed.
Divorce applications can be made on a joint or sole basis and cannot be defended based on the no-fault divorce law introduced in April 2022. The divorce process takes a minimum of 6 months to go through but can last longer if both parties disagree on the financial settlement.
The Key Differences
The main difference between a divorce and an annulment is how the law views the status of the marriage. Annulments are relevant if the law views the marriage as invalid, either during the marriage or after the marriage.
Another key difference between a divorce and annulment is the time it takes to process. Annulments can be applied for at any point during the marriage, whereas for a divorce you need to have been married for at least a year. This is why the rule for obtaining an annulment is stricter than a divorce, making it highly unlikely for couples, hence why annulments are rare, with only around 200 granted each year.
Therefore, it is important to consider whether it is worth applying for an annulment or waiting a year to file for a divorce instead.
What are the legal differences?
Since the introduction of the Divorce, Dissolution and Separation Act in 2020 (also known as DDSA 2020), you can obtain a divorce if you have been married for at least a year and state that the marriage has broken down irretrievably.
However, for an annulment you must prove to the court that the marriage is null and void.
The grounds for voiding a marriage are established in the Matrimonial Causes Act 1973, also known as MCA73. The grounds for voiding it are split into two categories;
- The first category is that the marriage was void and never legally valid. Examples of this include one party already being married at the time the marriage took place, both parties being too closely related, or one party being under the legal age to marry.
- The second category is that the marriage was voidable- which means it is valid unless a court cancels it. Examples of this include issues from day one in the marriage, such as the marriage never being consummated because one person couldn’t or refused to have sex after the wedding, one person was pressured, tricked, or not mentally capable to properly consent or one party has a medical disorder making them unfit for marriage at the time.
While the grounds for divorce have been regularly changed and altered, the annulment procedures have remained unchanged.
What is the legal process for obtaining an annulment?
To begin the process for obtaining an annulment, you must send a ‘nullity application’ to the court asking for an annulment.
Once the application is filed with the court and served, the spouse will have 14 days to acknowledge the application and state whether they agree or not. If agreed, a ‘conditional order of nullity’ will be applied, which confirms the court has no reason not to annul the marriage.
The conditional order of nullity can take up to six weeks to be granted, and once granted, you can apply for a nullity of marriage order. This is the final document that officially annuls the marriage. This can take around 4-6 months to proceed, and you may need to go to court even if the spouse agrees to the annulment.
Note: If a spouse contests the annulment, it can take longer than the 4–6-month timeline.
Do divorces and annulments affect financial settlements and child custody?
Whether you get a divorce or an annulment, neither ends the financial relationship between the spouses until a financial settlement has been made to the court for assets to be divided.
The court will balance the factors set out in the MCA 73 when deciding the financial settlements of the spouses, as they do for financial remedy orders under divorce.
Varying factors include:
- The spouses income
- The spouses’ earning capacity
- Properties owned by the spouses
- Financial needs and obligations
- Responsibilities the parties are likely to have in the future
Other factors include:
- The standard of living before the breakdown of the marriage
- The age of each party
- The duration of the marriage
- Any physical or mental illness of each party
- The conduct of each party
Financial Settlements
In regard to financial settlements, the court needs to approve all of these after being presented with them, whether you have a divorce or an annulment. This is the case even if an agreement on how assets are to be divided has been settled outside of court, such as mediation.
Child Custody or Support
In regard to child custody or support, this is also the same whether you are getting a divorce or having an annulment. This is because child arrangements are viewed as a separate issue in the eyes of the court.
The court will always prioritise the welfare of the child/children and state that both parents have a legal duty to financially support their children, regardless of whether a divorce or annulment is in place. This is done through the Child Maintenance Service, if not agreed.
When calculating what child support is needed, this process stays the same whether the marriage ends via a divorce or an annulment. The main consideration is the financial needs of the child and to ensure both parents meet that responsibility, regardless of their legal status relationship-wise.
How Davisons Law can help
Whether you need a divorce or an annulment, our expert family team at Davisons Law is on hand to help you. Get in touch today on 0808 304 7471 and a member of our team will be in touch.
