THE DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGES


In our last article, we discussed the concept of annulment. Put simply, an annulment is a declaration that your marriage never existed; a “clean slate.” This is different from a divorce. In order for a divorce order to be issued, you must have a valid marriage; that is, you must meet the requirements of the Marriage Act. For an annulment to be ordered, a marriage may be deemed to be “Void” or “Voidable.”

Here’s what you need to know:

Void Marriages: These are marriages that never existed because one or more of the requirements under the marriage act is missing. Put simply, there is a “fatal flaw” that nullifies the marriage, whether or not the parties wish the marriage to be nullified.  An annulment is a legal declaration that the marriage never existed.

Examples of void marriages include those between relatives, those who are too young to legally marry, those where one of the spouses is legally married, and where there has been a case of mistaken identity. Until relatively recently, same-sex marriages would have been included in this category, but the law has changed to recognize them as valid.

A marriage may be challenged  as void by a third party, whereas a voidable marriage can only be challenged by one of the spouses. For example, it was the children of Anna Nicole Smith’s late husband who challenged the validity of their marriage.

Voidable Marriages: These are marriages that do exist, until a legal flaw is brought to the attention of the court by one of the parties.

A common factor in a voidable marriage is either the inability or refusal to consummate the marriage. Another instance is where one of the parties was unable to consent to the marriage as a result of intoxication or coercion.

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