CAN I OBTAIN AN ANNULMENT AS OPPOSED TO GOING THROUGH THE PROCESS OF A DIVORCE?
Annulment, in Ontario, is subject to the Annulment of Marriages Act (Ontario) R.S.C. (Revised Statutes of Canada) 1970, c.A-14. Basically, Ontario follows the law of England as it was in 1870 as modified by the case law here. The Superior Court of Justice is the Court which decides all annulment cases.
It is extremely hard to be granted a civil annulment. A civil annulment is very different than an annulment granted by the Curia of Rome as part of the Catholic faith. To obtain an annulment, basically, the law requires proof that the marriage is unable to be consummated and it distinguishes between the inability to consummate and a willful refusal to do so. What is required is that at least one of the parties is incapable of engaging in sexual intercourse with their spouse and this condition must exist both at the time of the marriage and at the time of the Hearing. Whether the impotence is based on a physical inability or through a psychological incapacity makes no difference.
The mere refusal of marital intercourse due to willfulness or caprice is not sufficient ground to warrant a decree of nullity. There has to be incapacity of some kind which in some cases is a physical defect, but may also include a mental condition with the resulting affect of creating an aversion to the physical act of consummation which is not mere unwillingness, but an actual mental incapacity. In effect, some type of invincible repugnance to the act of intercourse must exist.
Much of the case law is very old, but there are current cases and the case law has been built up over many years.
Now this situation is very different, in effect, these marriages above are voidable as opposed to void ab initio (from the beginning). In other words, these marriages are annulled by a Court as opposed to a marriage which is void ab initio which is the situation, for example, where someone is already married and they entered into a second and therefore bigamous marriage. In the case of a bigamous marriage, because it is void from the beginning, consummation is irrelevant and an annulment of the marriage will be declared.