Unlike separation or divorce, an annulment means that the State accepts that the marriage never legally existed in the first place. Where a divorce is obtained, the State is saying that you were legally married but that the marriage has now come to an end.
There are three main grounds upon which you can apply for an annulment of your marriage:
Non – Observance of Formalities:
It is necessary to give at least three months notice in writing to the Registrar of Marriages of your intention to marry although in certain circumstances you can apply to the local Circuit Court to reduce this period of time if there are extenuating circumstances. If the relevant notice period has not been given and the marriage ceremony proceeds, this would be a ground for annulment. There are other grounds under this heading and you can read further on the subject by clicking the following link DC v. NM (1997) 2 IR 218.
Lack of Capacity:
The legal position in Ireland is that you are not entitled to marry somebody else if
a) You are under 18 years of age (unless you have a court order permitting you to do so).
b) You are not entitled to marry certain relations e.g. a brother cannot marry a sister.
c) According to the law as it stands, a man in Ireland cannot marry another man. Marriage in Ireland must be between a man and a woman although this is an area under challenge at the moment and for further reading on this, you should see Zappone & Gilligan v. Revenue Commissioners & another.
d) You would also be entitled to apply for an annulment if you subsequently discover that your spouse had previously been married to somebody else and that marriage had not been brought to an end legally, either by divorce or by an annulment.
Lack of Consent:
This is probably the main ground upon which a marriage is annulled in Ireland. One of the main grounds under this heading is the allegation that one party lacked the mental capacity to enter into the marriage contract. This is a very broad heading and if an argument can be made that one party did not understand the nature and responsibilities of marriage, then there may be grounds for an annulment. However, it is interpreted very strictly. You do not necessarily have to prove that the other person was suffering from a mental illness but because a marriage is regarded as a very simple, straightforward contact from a legal point of view, it would not require any great intellectual capacity to understand exactly what is involved.
- Lack of informed consent
You have to give your full, free and informed consent to the marriage and if one party was suffering for instance from schizophrenia or some other form of mental illness, that prevented them giving full, free and informed consent, this may be a ground for an annulment.
It might seem a little strange but it would perhaps not surprise you to learn that a growing number of marriages take place where one party, or in some cases both parties, are so intoxicated as to be unable to consent to a marriage or understand what they are doing.
- Fraud, mistake and misrepresentation
The above grounds can be interpreted very broadly or very narrowly.
It is well established in Ireland that if your partner was pregnant when she married and this fact was hidden from the other spouse, this is not a ground for an annulment and neither is the fact that you might believe your partner to be extremely wealthy and they subsequently turn out to be impoverished. The discovery that one party was gay subsequent to the marriage ceremony has, however, been found to be a ground for an annulment. Courts have decided that the undisclosed fact must concern a substantial matter that would fundamentally have affected the other party’s decision to marry.
In one case, the discovery by a spouse that their partner had been unfaithful during their engagement was not a sufficient ground for an annulment even though the other party confirmed that if they known this, they would not have married the other person in the first place. On the other hand, where the husband decided before the marriage that he would not engage in sexual intercourse with his wife and did not do so after the marriage, this was decided to be a ground for an annulment.
- Duress and undue influence
Once again, this is an area that can be interpreted very widely or very narrowly. In years gone by where the wife was pregnant prior to the marriage, both parties could come under very substantial pressure to marry. It is doubtful if similar circumstances now would give rise to a successful application for an annulment but the courts have said that this ground is to be treated subjectively and if the court accepts that one party genuinely believed that they were acting under undue influence or duress and if there are objective facts to back up this apprehension, then an application for an annulment could succeed.
- Marriage was for a certain limited purpose
A marriage can be declared to be null and void if the marriage was for a certain limited purpose. There has been publicity recently about sham marriages i.e. where parties get married for the sole purpose of gaining residency in Ireland. In cases such as this, however, the onus is on the State to show that the marriage is a sham and if they can show that the marriage was a ruse to prevent a deportation or to enhance some other objective, then the marriage could be declared to be void.
It is established now that impotence means not the inability to have children but the inability to have sexual intercourse. If intercourse has occurred, even once, then the marriage is regarded as consummated and is valid. A person may be physically capable of consummating a marriage but may be psychologically incapable and this will be a ground for an annulment. The wilful refusal, however to engage in a sexual relationship will not be accepted as a legitimate ground for an annulment. Having said that, there is authority for the fact that wilful refusal can be a ground in certain circumstances.
- Inability to enter and sustain a normal marital relationship
Again this can be interpreted very widely. If one of the parties was suffering from depression or drug addiction or alcoholism and the other party did not know of this until after the marriage, the marriage could be annulled.
Circumstances where an Annulment will not be granted:
It should be noted that there are a number of facts that could prevent a person successfully seeking to have their marriage annulled. If for instance the husband knows that the wife is suffering from a serious psychiatric illness but continues to live with the wife as man and wife then this can bar him from subsequently bringing a successful application. Delay can also prevent such an order being granted and the courts have also stated that if they find that the parties have colluded and have not given a true history to the court, an annulment may not be granted. Often this happens where parties do not want to wait the four years before applying for a divorce.
As we have indicated above, an annulment means that the marriage never legally took place. This is different from divorce and if you click on the following link, you can seek further information on the grounds for a divorce.
Q. If I marry while intoxicated and did not know I was married until the next day, is my marriage valid?
A. If the legal formalities have been complied with, then your marriage will be valid and binding unless you apply for an annulment, in which case it will probably be annulled.
Q. If I get married because I unexpectedly became pregnant, can my marriage be annulled?
A. Generally speaking the marriage will be binding unless you can show that there was very considerable outside pressure and that the parties themselves were immature.
Q. How long will it take and how much will it cost?
A. Difficult to answer. If the case is dealt with in the High Court, the costs will generally be much higher but there is often no reason why the application cannot be dealt with in the Circuit Court where the costs are reduced and the timescale can be much shorter.
THE ABOVE IS A GUIDE ONLY. IF YOU REQUIRE SPECIFIC ADVICE CONCERNING AN ANNULMENT, PLEASE CONTACT US BY TELEPHONE AT 01-6797930 OR CLICK HERE TO MAKE AN APPOINTMENT