Perhaps ironically, the simplest aspect of family law is the divorce itself. Most of the parties’ attention usually goes to child custody and access and corollary relief, such as spousal support, division of family property, and child support. This is in stark contrast to the history of divorce in Canada; prior to the passing of the first 1968 Divorce Act, a married couple could only be granted a divorce by way of a private act of Parliament.
The parameters for granting a divorce are set out at section 8 of the current federal Divorce Act. In order for a divorce to be granted, there must be a ‘breakdown of the marriage’ within the meaning of the Act. Marital breakdown occurs where i) spouses have lived separate and apart for at least a year, ii) the responding spouse has committed adultery, or iii) the responding spouse has treated the applicant with “physical or mental cruelty of such a kind” as to render continued cohabitation intolerable.
Most divorces are granted on the basis that the spouses have “lived separate and apart” for at least a year. Alleging a divorce on the basis of adultery or cruelty means that the applicant must prove said adultery or cruelty through evidence. This evidence is unlikely to be relevant to any issues with corollary relief issues – spousal misconduct is irrelevant to the issue of spousal support (s. 15.2(5)), there is no reference to spousal misconduct under the Federal Child Support Guidelines, and is irrelevant to the issue of custody and access except where that conduct is relevant to a party’s ability to parent the child (s. 16(9)). A responding spouse is also unlikely to consent to facts alleging abuse, resulting in increased costs and delay. Further still, the practical consequence of a delay in acquiring the divorce is that a party simply cannot remarry until the divorce has gone through, and new marriages within 1 year of separation from the former spouse are rare.
Annulment is a remedy available to a married couple that effectively dissolves the marriage without divorce. In alleging annulment, a party is forwarding a claim that there is some defect in the formation of parties’ marriage such that the marriage should be either void or voidable at the option of the applicant.
Annulment is rarely invoked due to its limited applicability and the additional cost associated with the remedy. More complicated facts must be alleged to substantiate an annulment, and an annulment may require a factum or other legal document to support the applicant’s position, resulting in substantially increased costs. An annulment does not generally attract different corollary relief options than can be claimed in a divorce action, so there is usually little legal advantage to be gained by claiming an annulment over a divorce.