Annulment and Divorce and When to Use One over the Other

The following is a post by Faraz Bawa; Mr. Bawa’s practice includes family law and he has used annulments in the past to address immigration issues for foreign nationals that cannot obtain a divorce from their country of origin/former residence.

Annulments are often misunderstood in addressing marital and immigration law problems. Instead of ending an existing marriage, annulments erase the existence of the underlying marriage. Many people confuse annulments and divorces as interchangeable methods of addressing marital breakdown.

In countries following traditional Catholicism divorces remain very taboo. In the Philippines, for example, divorce is simply unavailable and one can only proceed with annulment. This is often expensive and time-consuming. People often do not consider that they can often obtain a divorce from Canada instead, even if their spouse is overseas.

In contrast, in most other countries, divorce is far more common as a method of dissolving marriages. With the rise of globalization, immigrants from countries such as the Philippines often find themselves unsure how to address marital breakdowns. This uncertainty can often lead to often very serious legal complications in their immigration processes.

Put simply, once you are married, you cannot marry someone else, at least in Canadian law. The first marriage must be dissolved first. One cannot simply annul their first marriage out of convenience either. Annulments are only available, under Canadian law, if there was a defect of some kind in the marriage, such as a previously unresolved marriage. It makes no difference if the previous marriage was in a different country, contrary to popular belief. It still must be disclosed and addressed, always.

We have had many clients from the Philippines with difficulties in their immigration applications because of improperly addressed marriages.

General Rules:

  1. If you are married, you cannot forget about it. It must be disclosed to Immigration authorities and you must obtain a divorce before remarrying.
  2. Moving countries does not erase your need to obtain a divorce from your previous spouse.
  3. If you are married, but separated, and have a new partner, you can still be sponsored by them or include them on your immigration application, but must list them as a common-law partner instead. You will also likely need to show proof that you and your new partner are in a relationship and living together. You cannot list them as a spouse until your first marriage is legally dealt with though.
  4. If your new partner, such as in point 3, is also separated but still married to someone else, you must still disclose them as your partner to Immigration authorities.
  5. Failure to properly disclose a previous marriage, or a current common-law partner, can lead to being found inadmissible for misrepresentation. This is a very unnecessary risk which can simply be addressed by properly disclosing your new partner. It would also be advisable to divorce from the separated spouse.
  6. If you are planning to divorce your spouse, they do not need to “sign off” on the divorce. The typical steps are to file a Statement of Claim for divorce, serve the spouse and then proceed with the divorce. Unless there are ongoing property or support issues, you will usually be able to proceed with the divorce, even if they do not want to. This will however depend on the specifics of your case.
  7. If you have children overseas then you must pay child support, which is calculated using your income in Canada.
  8. It does not matter if you are in Canada and your spouse is not. You can still apply for a divorce from Canada as long as you have lived in a Canadian province for a year. It will however be up to a court to decide if you have enough ties to Canada for it to take jurisdiction of your marriage.

Below are some of the more common fact patterns we see.

The most common situation is when one party, call her Mary, a foreign national, is married to a previous spouse in the Philippines, call him Jose.  Mary comes to Canada and then marries someone new in Canada, call him Robert, who is Canadian. Mary then applies to be sponsored by Robert. Mary and Robert’s marriage is not recognized by law. Mary’s marriage to Robert must also be erased, as it was not done properly. Mary then must divorce Jose, annul Robert, and then re-marry Robert to have a legal marriage. This will often not be difficult to do, as Mary’s second marriage is clearly not valid.

Another common problem would be if Robert is also not Canadian, and he wishes to apply for Permanent Residence and lists Mary as his spouse. They would need to list Jose as Mary’s previous spouse, and then provide a divorce certificate. Immigration authorities in Canada will understand that divorce is not available in the Philippines, and will settle for an annulment from there, if available. However, these are very difficult and time-consuming to obtain. The simpler alternative is often, but not always, for Robert to apply for Permanent Residence, list Mary as his common-law spouse, and for Mary to proceed with a divorce from Canada. Mary and Robert cannot be married until Mary is divorced.

One interesting case we saw was an individual who was “married” in the Philippines, which he left unresolved, and then was married in Canada. This individual was sponsored by his second spouse, however Immigration authorities noted he was married to someone else and had not disclosed it properly, and he faced removal from Canada for misrepresentation. In this unique case we obtained an expert opinion from a lawyer in the Philippines noting that the first marriage in the Philippines was procedurally defective, and were able to get a court in Canada to declare that his first marriage was void. This effectively acted as a time-warp in erasing the first marriage, and thus the misrepresentation for not disclosing it. Of note however is that the individual did disclose his first marriage, but did so as a common-law relationship. This was of great assistance in showing he did not hide the first relationship itself, but simply mischaracterized it.

The takeaway is that annulment and divorce are not the same thing, under Canadian law, however an annulment from the Philippines can still be used for the same purpose as a divorce in Canada. Once someone is in Canada and is separated, they should definitely divorce their spouse from Canada before marrying again, or they will later need to obtain the divorce and have an extra annulment to do for their second marriage. You should also disclose your new relationship, even if you’ve not yet obtained a divorce, to avoid any misrepresentation concerns. These are all usually simple things to address up front, and avoid considerable headaches later. An ounce of prevention is worth a pound of cure.