Annulment says the marriage was never valid. Divorce says a valid marriage has ended. People often want the former for reasons of stigma, but it is only available where the statute allows it.
Void marriages: Section 11
These are nullities from the beginning. A decree merely declares what is already the case. The grounds:
- Either party had a living spouse at the time of the marriage
- The parties are within the degrees of prohibited relationship, unless custom permits
- The parties are sapindas of each other, unless custom permits
Voidable marriages: Section 12
These are valid until annulled, and only the aggrieved party can apply:
- Non-consummation owing to the impotence of the respondent
- The marriage was in contravention of the condition as to capacity to consent or mental disorder
- Consent obtained by force or fraud as to the ceremony or as to a material fact or circumstance concerning the respondent
- The respondent was pregnant by another person at the time of the marriage
For fraud or force, the petition must be filed within one year of the fraud being discovered or the force ceasing, and the petitioner must not have lived with the other party as husband and wife after that point. For pre-marriage pregnancy, within one year of the marriage, and the petitioner must have been ignorant of the fact at the time. Miss these and the remedy is gone, whatever the merits.
What "fraud" means here
It is narrower than people hope. Concealment of a serious pre-existing mental illness, of a subsisting marriage, or of material facts about identity have been accepted. Disappointment about income, family circumstances or temperament, generally has not. Courts require the concealment to go to a material fact or circumstance concerning the respondent.
The children are protected either way
Section 16 makes children of a void or voidable marriage legitimate, and they inherit from their parents. That is worth knowing before choosing the remedy, because it removes one of the common fears about annulment.