If you’re looking to end your marriage, you’ve probably come across the terms “annulment” and “divorce”. While many people are instantly familiar with the concept of the latter, fewer people understand exactly what annulment is and how it differs from divorce. Find out more about the differences between annulment and divorce.
The breakdown of a relationship is a stressful and difficult time. On top of organising finances, moving out of the family home and making arrangements for any children, you’ll likely also want to dissolve the marriage so that you and your spouse are no longer legally married and you can start a new chapter in your life. If you decide to end your marriage, there are three options available to you: annulment, legal separation and divorce. However, there are some key differences between annulment and divorce that you should be aware of. In this post, we provide a comprehensive guide to the differences between annulment and divorce and look at which is most relevant to you based on your situation.
What Are the Main Differences between Annulment and Divorce?
Annulment and divorce both have several distinguishing features, however, where they are similar is in their purpose — they both have the effect of dissolving — or ending — a marriage. The key difference between the two is in how they are treated. When a couple gets a divorce, the law still recognises them as having previously been married. An annulment, however, declares that the marriage was legally invalid — when a marriage is annulled, it is effectively treated as having never even existed.
Annulment is a solution if you are married and aren’t yet eligible for divorce. In the UK, a couple must be married for at least one year before they can file for divorce. If you’ve been married for less than a year and file for an annulment, the courts may actually be more favourable to your case — if you file for an annulment after several years of marriage, you may be asked to explain in more detail the reasons why. Bear in mind, though, that being married for a short period of time and deciding you want to end it does not automatically grant you the right to have an annulment, and there are certain conditions you must satisfy.
In order to file for an annulment, you must demonstrate that the marriage was not legally valid in the first place or that it is defective, or “voidable”. We’ll look at what constitutes a legally invalid or defective marriage shortly so that you can decide if annulment or divorce is right for you.
Cost alone should not be a determining factor in deciding whether to have an annulment or divorce. In terms of cost, the base cost of a divorce and annulment is identical. For an annulment, you must file a nullity petition. The court filing fee is £550. Applying for a divorce will also cost £550 for the court filing fee. Of course, in any situation, it’s advisable to consult an experienced family law solicitor, who will be able to guide you through the process, help you file the appropriate paperwork and make the best case to the court for ending your marriage. In either case, you may also decide to opt for mediation, either to see if you can resolve your differences — in the case of a divorce — or to decide on how to split finances and work out arrangements for any children, and these are all additional costs you must factor in.
Cost aside, the main differentiating factor between an annulment and divorce is how the marriage is treated. Many religious couples will opt for an annulment if their religion does not recognise divorce or if they have any other religious reason for wanting to stay married. In this instance, you must also prove that your marriage was voidable. If this cannot be satisfactorily proved to the courts, you may instead decide to opt for legal separation, which grants couples the right to split their assets and live their own lives without having to legally divorce.
In the UK, you must also decide how to split any matrimonial assets, whichever route you decide to take. This will likely be an easier and less time-consuming process if you have only been married for a short time, since you’ll have naturally accumulated less joint assets during your marriage. Even if you live in a shared home, you may be able to quickly mutually decide that the best course of action is to sell the home and split the return 50/50.
If you’re looking to get an annulment and you can’t agree how to split your assets, for example, if you’ve been married for a long period of time and have a child, property and several financial interests, you can take it to court. The courts will then decide how best to split your assets. However, bear in mind that this can be costly and take a long time to resolve. A solicitor will be able to advise you during this process and help you negotiate.
Annulment and Divorce: Which Is Best for Me?
Before understanding which route is best for your situation, it’s important to know what the grounds are for divorce and annulment.
Grounds for Annulment
As we stated previously, to be eligible for an annulment you need to prove that your marriage was not valid or that it is defective, in addition to having either lived in England or Wales for the past year or having a permanent home in England or Wales for at least six months.
If your marriage was not legally valid, it is considered “void”. A void marriage applies in the following cases:
- You are closely related (incest)
- One or both of you were below the age of consent (16 years old)
- One of you was already married or in a civil partnership (bigamy).
If you wish to annul your marriage and the above doesn’t apply, you may be able to file for an annulment based on the ground that your marriage is “voidable”, for example:
- If your marriage was not consummated (you have not had sex with your spouse since the wedding — note that this does not apply for same-sex couples)
- If you did not consent to the marriage (if you were forced or drunk)
- If the other person had a sexually transmitted disease when you got married
- If the female partner was pregnant by another man when you got married.
If you are in a civil partnership and you wish to end the marriage (and you cannot for the reasons listed above), the grounds for dissolving the partnership are not dissimilar to divorce, however, the court forms are the same as those filed for an annulment.
That being said, you can request to file for the annulment of a civil partnership if, for example, both parties were aware a civil partnership certificate was not duly issued, because one party did not consent (due to duress, unsoundness of mind or mistake), or because either party validly consented to the partnership but suffered from a mental disorder that made them unfit.
Grounds for Divorce
The grounds for getting a divorce differ compared to those for annulment. If you do not meet the criteria for annulment, you can choose between getting a divorce or legally separating. Some couples decide to opt for a legal separation if, for example, they do not wish to live together as a married couple but are not yet legally allowed to divorce (because they have been married for less than a year).
A divorce will be granted if the relationship has irrevocably broken down — and this is the key difference. If you’re debating whether to have an annulment or divorce, consider your reasons for doing so — is it because your marriage is not valid or defective, or because it has broken down?
To apply for divorce, one of the following must be present:
- Unreasonable behaviour — The most commonly cited ground for divorce, this can cover a multitude of scenarios, including an inappropriate relationship with someone outside of the marriage, drug or alcohol abuse, or physical or verbal abuse towards a spouse.
- Adultery — In a legal capacity, adultery is considered as having sex with another individual. It’s important to note that this reason cannot be cited if you continued to live with your partner for more than six months after finding out.
- Desertion — You may wonder if you can dissolve a marriage if your partner has left without a trace. Fortunately, this constitutes grounds for divorce, providing that they have been gone for at least two of the last two-and-a-half years of marriage and if you lived together for six months during that time.
- Separation — When it comes to divorce due to separation, the length of your separation will determine whether or not you need consent from your spouse. If you have been separated for two years, you will be able to divorce providing your partner also agrees. You will need to prove that you have been living separate lives, for example, by moving out of the family home, however, a divorce can be granted for this reason even if you continue to live under the same roof. In this case, having a separation agreement in place can be beneficial and speed up the process. If you have been separated for five years, you do not need consent from your partner to start the divorce process.
Having looked at the grounds for divorce, we can clearly see the difference. A divorce is granted because of issues that occurred during the relationship, while an annulment is largely based on conditions present at the actual time of the marriage — such as bigamy or non-consent.
Applying for an Annulment or Divorce
By now, you should have a clear idea of whether an annulment or divorce is better for you in your given situation. But how do you proceed to dissolve your marriage?
In the latter stages, the process is largely similar. In either case, you will have to apply for a decree nisi and decree absolute, which are documents that formally and legally end the marriage.
The difference in processes comes at the first stage. If you are applying for an annulment, you must file a nullity petition. For a divorce, you must file a divorce petition.
We’ll outline these processes below. However, it’s worth noting that this assumes that you and your spouse both agree on any division of assets or childcare arrangements. If you cannot agree, or aren’t sure how to proceed, consider reading our guides on who gets the house in a divorce and the advantages of a separation agreement, which, even if you decide not to legally separate or draw up a separation agreement, outlines how you can work with your spouse to determine the best arrangements for your children.
Applying for an Annulment
If you are eligible for an annulment — either because the marriage is void or voidable — you must first file a nullity petition. This involves filling in the details of your marriage (when it was and when it took place, etc.), as well as why the marriage is to be annulled. You also have an opportunity to state your case, detailing any facts upon which you rely to support your application. We advise consulting a family law solicitor, who will be able to help file this document. You can also state whether or not you are being represented by a lawyer, who can fill in a section of the application that gives you the opportunity to apply for any financial orders or provision orders for children.
Once you have filed a nullity petition, and providing that your spouse responds to it within eight days, agreeing that the marriage is to be annulled, you can apply for a decree nisi. When doing this, you must also sign a statement confirming that all the details you provided in your nullity petition were true. The statement you sign will depend on whether your marriage is void or defective (voidable).
Finally, you can apply for a decree absolute six weeks after you get a decree nisi. This is the final document that legally confirms that your marriage has been annulled. If you’re worried about cost, the fee for filing a decree absolute is included within the annulment (£550) cost. Before dissolving your marriage, the court will check for any reasons that your marriage should not be annulled. In the majority of cases, and providing you meet all the conditions required, you will not need to attend court. If the court finds no reasons why your marriage should not be annulled, it will send you a decree of nullity, which confirms that you are no longer legally married.
Applying for a Divorce
If you decide to apply for a divorce — or you need to because you are not eligible to file for an annulment — the first step is to file a divorce petition. This can be done online or via post. It’s important to note that if you ask your solicitor to file for divorce on your behalf or you’re ending a civil partnership, you must file by post. If you’re filing a divorce on the grounds of adultery and you name the person your spouse has cheated on you with, they will also receive copies of the paperwork.
When you file a divorce petition, you must send copies to your local divorce centre, which will send copies to your spouse.
As long as your spouse does not dispute the petition, you can file for a decree nisi. If your spouse does not consent to the divorce, you’ll have to attend a court hearing. Assuming that there are no disputes, you can apply for a decree absolute after 43 days (or six weeks and one day), which will legally end your marriage. You must do this within twelve months of filing for a decree nisi, otherwise, you’ll have to explain your reasoning for delaying the process to the court. If you do not apply for a decree absolute, your spouse can do so three months after the initial 43-day period. Once you’ve received your decree absolute, you are no longer legally married. It’s important to keep this document safe in the event that you want to remarry or prove that you are legally divorced.
There are a number of differences between annulment and divorce. If you’re wondering which is the best course of action for you, speak to our team of expert family solicitors in London and receive a free, no-obligation consultation.