Divorce ends a legally valid marriage, while annulment declares that the marriage was never legally valid or is voidable. Annulment and divorce are both ways to end a marriage in the UK.
Key differences between annulment and divorce
Annulment and divorce differ in a number of ways, including:
- Legal grounds
- When you can apply
- Time to finalise
- Outcome
- Spousal maintenance
- Division of assets
- Child arrangements
Legal grounds for a divorce vs annulment
The legal grounds for divorce are different from that of annulment. To get divorced in England or Wales, under the no-fault divorce law, which came into force in April 2022, all that matters is that your relationship has irretrievably broken down. You don’t need to provide evidence of the irretrievable breakdown of your marriage, however.
When you can apply for a divorce or annulment
In order to get divorced in England or Wales, a couple must have been married for at least 1 year before applying. Annulment, on the other hand, can be sought at any time, including within the first year of marriage. If you have been married for a significant amount of time, you may need to provide strong evidence for why you didn’t apply for annulment earlier.
Time to finalise a divorce or annulment
Annulment is a much faster process than divorce. Divorce can take a minimum of 6 to 7 months (assuming there are no delays in the courts). Annulment, on the other hand, does not necessitate a 20-week cooling-off period. However, there is a mandatory delay between receiving the Conditional Order and applying for a Final Order of 6 weeks.
To apply for annulment of a marriage, you must be able to show that it was never legally valid (i.e. it is ‘void’) or it was legally valid, but it is technically ‘voidable’. Your marriage may not be considered valid if:
- You are closely related to the person you married
- One or both of you were under 18 (or under 16 if your marriage took place before 27th February 2023), or
- One of you was already married or in a civil partnership
According to the law, if a marriage was never legally valid, it never existed.
On the other hand, a marriage may be ‘voidable’ if:
- It was not consummated – i.e. if you have not had sexual intercourse with the person you married since the wedding (the same does not apply to same-sex couples)
- You did not properly consent to the marriage – e.g. one person was forced into the marriage
- The other person had a sexually transmitted disease (STD) when you got married
- Your partner was pregnant by someone else when you got married, or
- One spouse is in the process of transitioning to a different gender
As with the divorce process in England and Wales, your marriage legally exists until it has been legally annulled for one of the reasons outlined above.
Outcome
Once your divorce has been finalised (in the form of a Final Order), you are no longer married. This is different from the process of annulment, which, rather than ending your marriage, deems that it is void or never valid; in other words, it is as though you were never married.
Spousal maintenance
Spousal maintenance is often paid by one spouse to the other in the event of divorce, typically if the paying spouse is financially better off than the receiving spouse. In the event of annulment, however, spousal maintenance or spousal support is not normally paid by one former spouse to the other because the marriage was never valid from the start.
Asset division
Following a divorce, depending on the needs of both parties and the length of the marriage, an arrangement for the division of marital assets and pre-marital assets is typically reached either between the separating couple or by a family court. In addition, if your partner owns the home in which you live, under your ‘home rights’, you can remain there until your divorce or annulment has been finalised and a court settlement has been agreed upon.
When it comes to the legal process of annulment, there is normally no division of pre-marital assets or property. This is because it is the original owner of the asset who retains ownership. In terms of matrimonial property and assets, it may be necessary to make an application for financial settlement to the family court to have these divided. Debts incurred during the marriage are normally split evenly.
Child arrangements
The process for coming to an arrangement for your children (i.e. where they will live and who they will spend time with) is the same in the case of divorce and annulment. This is because child arrangements are separate from matters of divorce or annulment. As such, you will need to come to an agreement with your ex-partner, or if this is not possible, seek mediation or apply to the court for a Child Arrangement Order.
Should you apply for a divorce or annulment?
There are various important factors to consider in order to determine whether divorce or annulment is best for your circumstances. Firstly, to obtain an annulment, you must clearly demonstrate that your marriage qualifies as either void or voidable under the law. If you cannot establish this, annulment will not be an available option. In this case, you must wait until you have been married for at least 12 months before applying for a divorce. Secondly, timing is a crucial consideration. If you wish to legally end your marriage within its first year, annulment is your only possible route, provided you satisfy the necessary legal requirements for annulment.
In some cases, divorce under the no-fault process may be more suitable. For example, if you are in a marriage without sexual intimacy, while you could apply for annulment on the grounds of non-consummation, pursuing divorce (assuming you have been married for at least 12 months) might be preferable as there is no need to provide evidence of a refusal to consummate.
If your marriage is void (i.e., not legally valid in the UK), such as if your partner was already married or in a civil partnership, annulment may be the only option to end the marriage.
Furthermore, people sometimes consider annulment for short marriages to avoid the one-year requirement or for personal reasons; please note that without a valid void/voidable ground, the option for annulment is not available. The law does not permit annulment simply for convenience or regret – there must be a qualifying reason.
