L. Bars to Annulment

Author:Julien D. Payne - Marilyn A. Payne

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There are three potential bars to a person obtaining a decree of nullity or other relief from a court of competent jurisdiction. They are (1) collusion; (2) estoppel; and (3) insincerity.

1) Collusion

Collusion constitutes a bar to relief in any matrimonial proceeding, including nullity proceedings.111Collusion signifies an agreement or conspiracy between the spouses to subvert the administration of justice, as, for example, by fabricating or suppressing evidence.

2) Estoppel

A spouse who has obtained a decree of nullity from a foreign court that was incompetent to assume jurisdiction, is precluded from attacking the validity of the foreign decree for the purpose of securing a pecuniary advantage against his or her spouse or the estate of that spouse.112Assume, for example, that a wife obtained a decree of nullity of marriage from a foreign court that was not entitled to deal with the issue. The foreign decree would not be recognized as valid by Canadian courts; the marriage would still be valid in Canada. But, if the husband were to die, his wife would be estopped from asserting succession rights in his estate under a provincial or territorial statute in Canada.

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3) Insincerity

The doctrine of "insincerity" may constitute a bar to the judicial annulment of a voidable marriage. A spouse may be precluded from impugning a voidable marriage if it has been previously approbated by the conduct of the parties. In an old English case, the doctrine of insincerity was explained in the following terms:

I think I can perceive that the real basis of reasoning which underlines that phraseology is this, and nothing more than this, that there may be conduct on the part of the person seeking this remedy, which ought to estop that person from having it; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, approbated the marriage which he or she seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed. Well now, that explanation can be referred to known principles of equitable, and, I may say, general jurisprudence. The circumstances which may justify it are various, and in cases of this kind many sorts of conduct might exist, taking pecuniary benefits, for example, living for a...

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