To annul or not to annul, that is the question

What do Henry VIII and Britney Spears have in common? Now that certainly isn’t something you expect to hear, but our 15th Century Monarch and 1990’s pop princess are behind two of the most famous marriage annulments in history.

In Henry’s case he had been married to Catherine of Aragon by virtue of an agreement between their respective parents despite Catherine having already been married to Henry’s late brother Arthur. Catherine was in her 40’s by the time of the marriage and unable to give Henry the heir he needed to secure the future of the Tudor dynasty and he asked the Pope to annul the marriage.

Henry cited that the marriage was illegal due to Catherine being his sister-in-law (which technically was enough to make the marriage void). Whilst the Pope grappled with the idea of annulment, Henry fell in love with Anne Boleyn, whom he married in secret, and pushed through a series of Parliamentary Acts to reduce the power of the Pope enabling the Archbishop to declare his first marriage annulled.

Britney Spears’ twentieth century annulment was far more straight forward. She took to Las Vegas with a childhood friend and before she knew it ‘a wild, crazy joke’ had gone too far and the couple left the Little White Wedding Chapel as man and wife. Lawyers for Britney claimed that she lacked understanding and was incapable of agreeing to the marriage and just 55 hours later, the marriage was successfully annulled.

So what are the grounds to Annulment and how does this differ from Divorce?

While both annulment and divorce are legal procedures in England & Wales, they have quite a different legal effect. Annulment is a court declaration that a marriage was not legally valid, or that it became invalid whereas a divorce is a legal decree ending a valid marriage. In essence, annulment erases a marriage as though it never was whereas a divorce acknowledges that it has both existed and ended.

There are two potential types of annulment in England & Wales, void ab initio – completely invalid from the outset, and voidable – potentially invalid but in force until a Decree of Nullity is obtained from the Court.

Void ab Initio

To prove a void ab initio marriage only certain criteria apply including: the parties being too closely related; the parties being underage; the marital requirements having not been met; a party to the marriage being lawfully married to another.

Potentially Voidable

To render a marriage potentially voidable is more difficult and the party wishing to bring the annulment must demonstrate one of the following: incapacity to consummate the marriage; the other party wilfully refusing to consummate the marriage; no valid consent provided owing to duress, mistake or unsoundness of mind; one party was unable to give consent due to a proven mental health disorder; the other party suffered from a venereal disease or was pregnant by a third party; or issues relating to the gender of the other party.

Procedure for Nullity

As with divorce, the person wishing to annul the marriage will need to file a Petition with the Court setting out the details of the parties, the marriage and the grounds they state apply to the application. This will be sent to the other party who will be asked to acknowledge the proceedings and confirm whether they consent to the Nullity Petition proceeding or whether they wish to defend it. In usual circumstances the Judge will then call the parties to the Court to give evidence in support of their application before the Decree Nisi is pronounced, this certificate confirms the parties are entitled to annul. Six weeks and one day after the making of the Nisi, the Petitioner will be able to apply for the Decree of Nullity which legally annuls the marriage.

It is important to remember that even after a Decree of Nullity has been pronounced, either party may apply for an order in relation to property, pensions and orders relating to children if applicable it is therefore essential that you consult a family law solicitor for specialist advice.