I do, I didn’t

Most of the time, when someone wants to end their marriage they apply to the court for a divorce. Particularly if there are no contentious issues in play, a divorce can be relatively quick, straightforward and inexpensive.

A recent British Columbia annulment case got me wondering why anyone would prefer this more complicated and archaic means of bringing a marriage to an end. I had to start by pulling out my family law text books, because I didn’t really remember much about the topic.

In Ontario, annulment falls under the “Act to provide in the Province of Ontario for the annulment of marriage,” which states:

“The law of England as to the annulment of marriage, as that law existed on the 15th day of July 1870, in so far as it can be made to apply in the Province of Ontario, . . . is in force in the Province of Ontario.”

And that’s it. At three paragraphs, it is surely the shortest law around. It also seemed to be pretty old, given how much has changed about people’s intimate relationships since 1870.

Quoad what?

The law was not terribly helpful in terms of understanding what an annulment actually is and how someone can get one, so I turned to case law. Historically, marriages were most often annulled because of a failure to consummate the union.

In the 17th century courts of France and Spain, the parties were required to attempt copulation in front of a jury of medical experts; surely not an environment conducive to assisting people having problems with physical intimacy.

A 1921 English case (C. v. C. [1921] P. 399), contained these pithy remarks, made by Lord Birkenhead:

“The petitioner must remove all reasonable doubt, for she has undertaken the burden of proof, and it is important in such a case that she should be compelled to discharge the burden, for the charge made, though physical and not moral, is nevertheless a grave and wounding imputation that the respondent is lacking, at least quoad hanc, in the power of reproducing his species, a power which is commonly and rightly considered to be the most characteristic quality of manhood.”

Once I finished musing about whether reproduction is really the “most characteristic quality of manhood,” I had to reach for my dictionary to learn what “quoad hanc” meant: “sexual impotence of the husband; in respect of this woman only.” (Where it is the woman who is unable to consummate the marriage, the term is quoad hunc.)

There was a decidedly moral tone to many of the annulment decisions made in Canada well into the 20th century. In an Ontario Court of Appeal decision from 1944, Justice Laidlaw wrote:

“In my opinion, it is not in the best interests of public morals and social welfare that the burden of proof necessary in law to end the solemn vows and undertakings of married persons should be discharged with any degree of ease.”

Lumbering into the 21st century

Fortunately for the parties in the recent B.C. case, Madam Justice Baker was satisfied that:

“the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times. I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.“

The wife in that case sought an annulment based on her husband’s inability to engage successfully in sexual intercourse. Madam Justice Baker rejected the suggestion that the husband submit to a medical examination, stating that she was satisfied by the evidence of both parties that he was not able to consummate the marriage.

That evidence established that they discussed having children together before they got married; did not live together before their marriage; attempted sexual intercourse many times in the weeks and months after they got married; all of which were unsuccessful, and that they eventually separated. Following separation, the husband became involved in a new relationship which, he told the court, he was able to consummate.

Madam Justice Baker concluded:

“I find that at the time the parties were married in August 2018, the respondent was not capable of maintaining an erection and achieving penetrative sexual intercourse with the claimant. Notwithstanding months of attempts during their marriage, at no time was the respondent able to perform sexual intercourse with the claimant. The incapability of the respondent arises not from a refusal to have sexual intercourse, but rather from a disability of some sort, whether physical or psychological.

“I am satisfied that the claimant has met the burden on her . . . The marriage contract . . . is null and void.”

But what exactly is an annulment?

Despite my meanderings around old law books and case law old and new, I was still not entirely clear about what an annulment is and how someone can get one, so I turned to Community Legal Education Ontario’s Steps to Justice, which provided me with exactly what I wanted to know.

An annulment makes a marriage null and void; it is as though it never happened. A person whose marriage has been annulled can tick the “never married” box on any form seeking information about their marital status, whereas someone who is divorced cannot.

While a divorce is just fine for many people, for others there are religious or cultural reasons to erase the past union; often to facilitate moving ahead with a future marriage within their religion or culture.

In past centuries, lack of consummation was seen as a canonical disability, and claims for annulment were handled by the ecclesiastical courts. Now, they are dealt with in the civil court system. In Ontario, someone seeking to have their marriage annulled can apply to either the Superior Court of Justice or the Unified Family Court.

The grounds for an annulment have broadened over the centuries. In Ontario, an annulment can be granted, providing there is sufficient evidence, if one partner was already married and the other did not know; if either partner was under 16 or was 16 or 17 but did not have permission from their parents; if the two people are too closely related to one another; if either person did not understand what it meant to get married; if one partner was forced into the marriage against their will; if the marriage ceremony was not performed properly or was performed by someone without the legal authority to do so, or if the marriage could not be consummated.

Annulments are rare in Canada, but no doubt those who need one because of their religious or cultural beliefs are happy that the approach of the courts has modernized from the intrusive attitudes of the 18th,  19th and even 20th centuries.  

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