Divorce vs. Annulment in Canada: What’s the Difference?

Divorce vs. annulment: If your marriage is ending, you may be wondering:  Should I get a divorce or an annulment?

While both options bring a marriage to an end, they are very different legal processes under Canadian law. Understanding the divorce vs. annulment difference is important to knowing which one might apply to your situation, and what the consequences are, as you take your next steps.

Let’s break down the similarities and differences between marriage annulment vs divorce.

What is a Divorce?

A divorce is the legal end of a valid marriage. In Canada, divorce is governed by the federal Divorce Act, which applies not only in Ontario, but across the country.

If you want to get a divorce, you must prove there has been a “breakdown of the marriage.” The Divorce Act sets out the three ways you can establish this:

• Be separated from your spouse for at least one year
• Prove your spouse committed adultery
• Establish cruelty (physical or mental) on the part of your spouse.

The one-year separation is considered to be a “no-fault” ground for divorce, and is the most common route for Canadian couples. The other two are “at-fault” grounds and are less frequently used, largely because they’re harder to prove in court.

Either way, once your divorce is granted, your marriage is officially over; you and your former spouse are legally free to remarry.

Learn more about the process of divorce in Canada by reading our article on: Divorce in Ontario: A Legal, Financial, and Emotional Checklist.

What is an Annulment?

As contrasted with a divorce, an annulment is a legal declaration that your marriage is invalid from the outset. The distinction between what is annulment vs. divorce lies in how the law views the marriage: divorce ends a valid union, while annulment treats it as though it never legally existed.

In Canada, annulments are relatively rare. The Ontario Superior Court has the authority to grant them under the federal Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A.14. This law adopts the historical annulment laws of England as they stood in 1870. The net effect is that the court is empowered to grant an annulment, and once the order is obtained, it’s not that the marriage is over – it’s as if it never legally existed in the first place.

There are two grounds for getting an annulment: 1) The marriage was void in the first place (i.e. never legally came into existence); or 2) it was voidable, and the option to void it was exercised by one of the parties to it. Here are the details on each category:

1. Void Marriages

The marriage was never valid to begin with, due to serious legal flaws such as:

• Bigamy (one or both spouses were already married)
• Close blood relationship between the spouses (e.g., siblings), so that the marriage contravened the provisions of the Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46
• Absence of a valid marriage ceremony (such as lacking a licensed officiant or proper registration).

2. Voidable Marriages

In contrast to void marriages, voidable marriages are presumed valid, but can be annulled due to certain defects, such as:

• Lack of consent due to intoxication, coercion, or mental incapacity 
• Non-consummation of the marriage (i.e., the spouses did not have sexual relations after marriage due to refusal or incapacity)
• Fraud or misrepresentation involving essential matters (for example, hiding a serious criminal history or infertility).

Is annulment the same as divorce? Answering this can help clarify your legal options. While they both conclude the marital relationship, they stem from entirely different legal principles.

Key Differences Between Divorce and Annulment

Feature	Divorce	Annulment
Marriage status	Ends a legally-valid marriage	Declares the marriage invalid
Law applied	Divorce Act (federal)	The federal Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14
Grounds	Breakdown of marriage (e.g., separation, adultery, cruelty)	Legal defect or flaw in consent
Result	Marriage is over	Marriage was never legally valid
Waiting period	Usually must separate for 1 year	No waiting period
Children and support	Parenting and support orders apply	Same rights apply if children exist
Property division	Equalization under provincial Family Law	May still apply, depending on circumstances

Which Option is Available to You?

So, divorce vs. annulment—which applies to your case? Here’s a simple rule of thumb:

• If your marriage was valid but has broken down, divorce is the appropriate legal path.
• If your marriage was never legally valid due to some defect or you were misled or coerced, then an annulment might be possible.

Since the distinction between marriage annulment vs. divorce can be nuanced, and because the consequences are significant, it’s wise to consult a lawyer. Our experienced firm of Family Lawyers can help you understand the divorce vs. annulment difference, assess your circumstances, and advise you on the best course of action.

We’re here to help with clear legal guidance and support every step of the way, whether you’re asking, “Is annulment the same as divorce?” or trying to figure out “what is annulment vs. divorce” in your specific situation. Get in touch with our expert team today.