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 entails 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 quite often happens that a union between two people ends for various reasons. Most of the time, the marriage ends in a divorce.
In certain quite specific cases, a marriage can even be cancelled. How to know if one should choose the path of divorce or the cancellation of the marriage?
First, it will be a question of what divorce involves, its causes and its consequences. Subsequently, it will be a question of the cancellation of the marriage and what distinguishes this process from divorce.
Divorce: its causes and effects explained!
It is first important to familiarize oneself with the legal implications of divorce in Quebec. Divorce is a dissolution of marriage that occurs as a result of a divorce judgment pronounced by the court. One of the spouses must initiate a "divorce initiation request".
The 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. De facto separation
One of the essential components of marriage is the common life between spouses. Thus, in order to conclude that there has been a de facto separation, it is necessary to prove the presence of an intention to no longer live together. To meet 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 no longer live together. However, it is possible to live separately while living under the same roof, as long as one of the spouses shows his intention to lead a separate life, for example, by sleeping in separate rooms. In this case, it will be up to the court to determine if the criterion of de facto separation has been met.
As this reason for divorce does not imply any fault on the part of one spouse or the other, it can be invoked by either of the spouses.
2. Adultery
Another cause of divorce recognized by law is adultery. Only the deceived spouse can invoke adultery in order to request a divorce. Of course, since it involves a fault on the part of one of the spouses, the spouse who uses this reason will have to prove the adultery. Moreover, if the spouse forgives the adultery of their unfaithful partner, it will no longer be possible to use this cause to request a divorce.
3. Physical or mental cruelty
Acts of physical or mental cruelty towards a spouse can also constitute 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 acts of cruelty will have the burden of proving it.
What are the legal consequences of divorce in Quebec?
If the spouses manage to come to an agreement, they can divorce amicably with a joint divorce application in which they detail their agreement project, which contains several stipulations related to child custody, the division of family assets, etc.
This agreement project will later be presented to the court, which will have the task of analyzing the request and approving it.
When the spouses cannot come to an agreement and the separation has been in effect for at least one year, one of the spouses can file a divorce application without the other spouse's agreement. In this case, it will be important to use the services of a family law lawyer.
Divorce has the effect ofending marriage permanently. It also leads to heavy legal consequences, such as the division of family wealth and the dissolution of the marital regime.
Marriage annulment: when is it applicable?
The annulment of marriage is only possible in certain quite particular situations. Indeed, a marriage will be annulled when there has been a flaw in relation to the fundamental conditions or the conditions of marriage celebration.
What are the causes of marriage annulment?
First, the marriage can be annulled if the necessary conditions for marriage have not been met. In Quebec, there are both fundamental conditions of marriage and conditions of celebration.
The flaws in the fundamental conditions of marriage
A spouse may ask the court for the annulment of a marriage if one of the fundamental conditions of marriage has not been met. This is particularly the case if:
- The spouses are related to a prohibited degree (parents and children, siblings, etc.);
- There was a lack of free and informed consent from a spouse, for example if one of the spouses gave their consent due to a mistake or under duress;
- The spouses had not reached the minimum age of 16 to marry;
- At the time of the celebration, the previous marriage of one of the spouses 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 a defect in one or more of the conditions of the marriage celebration. The annulment of the marriage will therefore target the following situations:
- The marriage notice was not published before the wedding;
- The ceremony was not public;
- The wedding officiant was not competent, that is he was not authorized to officiate the wedding by the Minister of Justice.
All the effects of annulling a marriage!
What mainly distinguishes the annulment of a marriage from divorce is its consequences. The annulment ensures 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 some cases, produce legal effects. Unlike divorce, the court adjudicating the nullity of the marriage will also rule on the good faith of the spouses.
If both spouses were in good faith, they will be able to choose between the liquidation of the family patrimony and the recovery of their respective assets.
If one of the spouses is judged to be in good faith , they may also choose to reclaim their assets or request the liquidation of the marital regime and the division of the family wealth.
Finally, if both spouses were in bad faith, they will simply have to reclaim their respective assets at the end of the marriage.
Thus, it is possible to note that divorce and the annulment of a marriage have their differences. Annulment requires that very specific conditions are met, such as those mentioned above. If the 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 marriage annulment!
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