For most people, marriage evokes the celebration of a couple or a religious or social tradition.
However, in Quebec, marriage not only marks the beginning of a couple's life together. It is first and foremost an institution that has purely legal effects for the spouses, both during the marriage and at its end.
Unfortunately, even though we hope that marriage will have a happy ending, it often happens that a union between two people ends for various reasons. Most of the time, marriage ends in divorce.
In some quite particular cases, a marriage can even be annulled. How to know whether to choose the path of divorce or that of annulment of the marriage?
First, we will discuss what divorce implies, its causes, and its consequences. Then, we will address the annulment of marriage and what distinguishes this process from divorce.
Divorce: Its Causes and Effects Explained!
It is important to first familiarize oneself with the legal implications of divorce in Quebec. Divorce is a dissolution of marriage that occurs following a divorce judgment pronounced by the court. One of the spouses must undertake an "introductory application for divorce."
Causes of Divorce
In order to divorce, it must be demonstrated that there is a failure of the marriage if one of the three criteria recognized by law is applicable:
1. Separation de facto
One of the essential components of marriage is cohabitation between spouses. Thus, in order to conclude that there has been a separation de facto, it is necessary to prove the presence of an intention to no longer live together. To fulfill this criterion, the spouses must have lived separately for at least one year.
If the spouses do not live under the same roof, it is easier to conclude that they are no longer living together. However, it is possible to live separately while living under the same roof, as long as one of the spouses demonstrates their intention to lead a separate life, for example, by sleeping in a separate bedroom. In this case, it will be up to the court to determine whether the criterion of separation de facto has been met.
Since this ground for divorce does not imply fault on the part of either spouse, it can be invoked by either spouse.
2. Adultery
Another cause of divorce recognized in law is adultery. Only the betrayed spouse can invoke adultery in order to ask for a divorce. Obviously, since it involves a fault on the part of one of the spouses, the spouse using this reason will have to prove the adultery. Furthermore, if the spouse forgives the adultery of their unfaithful partner, it will no longer be possible to use this reason to ask for a divorce.
3. Physical or mental cruelty
Acts of physical or mental cruelty towards a spouse can also be a reason for divorce. The cruelty suffered by the spouse must make cohabitation intolerable.
As is the case with adultery, only the victimized spouse can invoke the reason of physical or mental cruelty . The spouse alleging the acts of cruelty will have the burden of proving it.
What are the legal consequences of divorce in Quebec?
If the spouses are able to agree, they can get an amicable divorce through a joint request for divorce in which they detail their agreement, which contains several provisions related to child custody, division of family property, etc.
This agreement will then be presented to the court, which will analyze the request and approve it.
When the spouses cannot agree and the separation is at least one year old, one of the spouses can file for divorce without the agreement of the other spouse. In this case, it will be important to use the services of a family law lawyer.
Divorce has the effect of permanently ending the marriage. It also entails heavy legal consequences, such as the division of the family estate and the dissolution of the matrimonial regime.
Annulment of marriage: in what cases is it applicable?
Annulment of marriage is only possible in certain specific situations. Indeed, a marriage will be annulled when there has been a defect in the substantive or celebratory conditions of the marriage.
What are the causes of annulment of marriage?
First, marriage can be annulled if the necessary conditions for marriage have not been met. In Quebec, there are both substantive and celebratory conditions for marriage.
Defects in the substantive conditions of marriage
A spouse may ask the court to annul a marriage if one of the substantive conditions of marriage has not been met. This is particularly the case if:
- The spouses have a prohibited degree of relationship (parents and children, brothers and sisters, etc.);
- There was a lack of free and informed consent from one of the spouses, for example if one of the spouses gave consent due to an error or under duress;
- The spouses had not reached the minimum age of 16 to get married;
- At the time of the celebration, one of the spouses' prior marriage was still valid.
Defects in the conditions of marriage celebration
It is also possible for a spouse to request the annulment of the marriage due to defects in one or more of the conditions of marriage celebration. The annulment of the marriage will therefore apply to the following situations:
- The marriage notice was not published before the marriage;
- The celebration was not public;
- The celebrant of the marriage was not competent, meaning that he was not authorized to celebrate the marriage by the Minister of Justice.
All the effects of annulling a marriage!
What mainly distinguishes the annulment of a marriage from divorce relates to its consequences. The annulment means that the marriage and all its effects will be erased. It will be as if the marriage never existed.
However, it should be noted that the annulment of a marriage can, in certain cases, have legal effects. Unlike divorce, the court that rules on the nullity of the marriage will also rule on the good faith of the spouses.
If both spouses were acting in good faith, they will be able to choose between liquidating the family patrimony or resuming possession of their respective property.
If one of the spouses is deemed to be acting in good faith , they may also choose to take back their property or request the liquidation of the matrimonial regime and the division of the family estate.
Finally, if both spouses were acting in bad faith, they will simply have to take back their respective property at the end of the marriage.
Thus, it is possible to see that divorce and annulment of a marriage have their differences. Annulment requires very specific conditions to be met, such as those mentioned above. If annulment of the marriage is not possible, it is always possible to turn to divorce, which does not take into account the good or bad faith of the spouses.
Consult a lawyer specialized in divorce and annulment of marriage!
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