Unlike a divorce, which ends a marriage in the eyes of the law, an annulment is a legal process whereby the marriage is said to never have happened. While some people may think an annulment is something that a couple can do if they hastily enter into a wedding and regret their actions soon afterward. However, annulments are actually quite rare and only granted under specific circumstances. In most cases, it is much easier to obtain a divorce. In a recent case in British Columbia, however, a judge granted a couple an annulment due to one spouse’s physical challenges in maintaining a sexual relationship.

Why Seek an Annulment Instead of a Divorce?

The reason for obtaining an annulment is often tied to a couple’s religious beliefs. In some faiths, divorce is to be avoided at all costs, and so the couple will instead seek a declaration that they were never married at all. This was the impetus for the application in the case at hand, in which the wife sought an annulment due to her husband’s inability to maintain an erection. As a result, the couple was never able to consummate their marriage, which the wife characterized as an inability to fulfil an implied term of their marriage contract.

In this case, the couple did not attempt a sexual relationship until after they were married. Prior to marriage, they had discussed having children. After they were married, the couple attempted to consummate the marriage several times, but the husband was unable to maintain an erection each time. They met with a doctor who completed bloodwork on the husband and determined there was no physical explanation for his difficulties. Soon after, the couple began to live separately and apart from one another.

The Evidentiary Burden

The judge cited previous cases which held that the affidavit evidence provided was sufficient to establish the fact that the couple was unable to consummate their marriage. In addition, the challenges to sexual intercourse were not required to be based on a physical impairment – they might also be psychological. The judge found the wife’s application evidence to be credible, and the husband did not provide any evidence to the contrary. As a result, the annulment was granted.

The judge in the case acknowledged that historically, it may have been necessary to provide medical evidence of the husband’s inability to perform sexually, but that it was no longer required:

I am satisfied the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times…I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.

The husband confirmed that he had since entered into a new relationship and that he did not experience the same challenges with his current partner. This did not have a negative impact on the wife’s application, as the inability to consummate the marriage was not required to be a permanent condition; it was only required that he was unable to engage in intercourse in the context of the marriage in question.

Obtaining an Annulment in Alberta

While this was a British Columbia decision, there are similar rules in Alberta setting out when an annulment may be granted. As set out by the provincial government, annulments are rare, and limited to the following circumstances:

  • one spouse was already married to another person when they married a new person
  • the marriage only took place because of a threat to one or both spouse’s physical safety
  • one or both spouses were impaired by drugs or alcohol to the point that they did not understand they were getting married
  • there was a question of identity with one or both spouses
  • if one or both spouses is unable to consummate the marriage
  • if one or both spouses were under the age of 18 at the time of the marriage, they did not have their parent’s consent, and they did not consummate the marriage

When a relationship breaks down, the lawyers at Mincher Koeman aim to ensure that our clients are steered towards the most efficient and cost-effective resolution. We will treat your matter with empathy and skill, putting our considerable experience to work for you. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.

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