“Over a century ago, in Reid v. Aull, the court held that “Divorce assumes the previous existence of the marriage status. Its result is to put an end to that status without affecting its existence in the past.”
Nullity, on the other hand, was described in Kerr v. Kerr. The court held that, in the context of insanity, “[s]uits for nullity on the ground of insanity seek not to dissolve an existing marriage, but to declare that no marriage exists.”
A divorce therefore can only be granted where there is a valid existing marriage and the cause for ending the marriage arises after the marriage has come into existence. A nullity, however, will be granted in two situations: 1) where there is no valid existing marriage from the very outset, or 2) where the marriage was validly entered into but the cause for ending the marriage existed from the very outset.
The grounds of nullity fall into the two categories above. In the first situation, where there is no valid existing marriage from the outset, the marriage is considered void ab initio, meaning “from the beginning.” A marriage void ab initio is considered never to have taken place. A decree of nullity is purely declaratory in such a case, and is not legally required in order to end the marriage because the marriage is void already.
In the second situation, where the cause for ending the otherwise valid marriage was existing at the time it was entered into, the marriage is considered voidable. A voidable marriage is considered to be a valid marriage, with all its rights and consequences, unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”
Recently, in the Ross-Scott v. Groves Estate, the British Columbia Supreme Court relied on an academic source to articulate the distinction between the void and voidable scenarios:
In Canadian Family Law, 5th Ed. Julien D. Payne and Marilyn A. Payne, the authors describe the distinctions between void and voidable marriages. At page 21, they say:
Marriages may be valid, void, or voidable accordingly to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction. A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses. […] A void marriage, however, is impeachable by third parties who “have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit”. […]A void marriage may also be impugned collaterally after the death of one or both spouses.
In the following situations, marriages are considered to be void ab initio:
• One or both parties is married to another person at the time of marriage
• One or both parties did not consent to the marriage or lacked the mental capacity to consent
• The parties are related within prohibited degrees
• One or both of the parties is under the age of majority at the time of marriage
• The marriage ceremony was incomplete
In the following scenarios, marriages were considered voidable:
• The marriage was entered into for fraudulent purposes
• Consummation of the marriage is impossible because of a lack of capacity; or there is a wilful refusal of a party to consummate the marriage, for instance, due to repugnance.