A Straightforward Guide to Annulment, from our Family Law Experts
The concept of annulment, which we often hear of on TV, doesn’t exist as such in Scottish civil law.
However, a marriage can be declared void – which means it is a nullity, treated as if it had never legally existed. This would mean that when filling in legal forms you would go back to using “single” rather than “divorced” to describe your marital status, for example.
Deciding you’re not getting along and that getting married was a horrible mistake is not a reason to seek to have the marriage declared void. If that is the issue, you’ll have to apply for divorce instead. However, if any of the following are true your marriage can effectively be cancelled;
- If one or both of you was under sixteen at the time. If you are under 16 you cannot legally consent to marriage.
- If one of you was already married at the time. As well as being void this is the crime of bigamy – marrying or entering a civil partnership when you are already legally married or in a civil partnership. Bigamy is punishable by up to two years in jail, a fine or both.
- If you are close blood relatives (specifically defined in law and including parents, siblings and grandchildren). In some circumstances, marriage between non-blood relations may also be prohibited.
A marriage could also be void if;
One of you consented to the marriage by mistake or as a result of duress. Duress is where someone threatens or coerces someone else to do something they wouldn’t otherwise have done – in this case, entering into a marriage against their will.
One of you was incapable of giving valid consent – for example, as a result of cognitive impairment – and/or understanding the nature of what you were agreeing to (that is, the legal obligations of marriage).
In practical terms, if you want to remarry, or need to prove you were never married for another reason, you’ll need to ask a court to declare the marriage was void. If appropriate, the court can also make financial orders relating to the void marriage.
One final thing to note is that the rules become a bit more complicated if the marriage didn’t take place in Scotland. So it’s worth contacting a specialist for advice as soon as possible.