Occasionally I will get a call from a potential client who wants to know whether he or she has grounds to obtain an annulment. A legally valid marriage can only be terminated by a divorce, however, if a marriage was never legally valid, an annulment may be possible.
Grounds for an annulment include the following:
1. Where one or both spouses do not have the capacity to marry. For example, where one spouse is already legally married or where one spouse was not of a sufficient age to enter into to matrimony;
2. If spouses are related to each other through blood or adoption;
3. Where one spouse is mentally incapacitated;
4. Where one spouse enters into the marriage under duress, fear or fraud.
When duress is submitted as a ground for anulment a court will consider the following factors:
a) The emotional state of the applicant at the time of the ceremony; and,
b) The vulnerability of the applicant; and,
c) The time between the coercive conduct and the ceremony; and,
d) Whether the marriage was consummated; and,
e) Where the spouses resided during the marriage; and,
f) The time taken to initiate annulment proceedings.
In a recent case in British Columbia the Supreme Court granted an annulment to a young woman who believed her boss would fire her if she did not agree to marry one of his relatives who lived in India. Kaur v. Jhamb 2019 BCSC 67. Ms. Kaur was told by her employer that her job security would be at risk if she refused to comply with his request.
Her boss gave her one day to think about it and the following day she agreed to comply with his request. She told the court of her intense stress and her fear of losing her job. A civil marriage ceremony was attended by the bride and groom and several of her employer’s friends. After the ceremony she went home alone and never saw her husband again.
Each of the parties belonged to the Sikh religion and were Punjabi by ethnicity. In accordance with the Sikh religion in order for the marriage to be completed, a religious ceremony conducted in front of the holy book Shri Guru Granth, was also required. Ms. Kaur declined to move forward with a religious ceremony and was promptly fired by her employer.
The Court held that the marriage was a sham and granted an annulment:
“The evidence before me is overwhelming that the civil marriage ceremony the parties participated in on August 21, 2018 was a sham and was entered into solely for immigration purposes. I am satisfied that the claimant did not enter into the agreement to participate in this sham of her own free will, but did so because of the threat of losing her job. I find that she was coerced into marrying the respondent and participated in the civil ceremony under duress.”
Lawdiva aka Georgialee Lang