CHAPTER 23 Nullity

• Date: 07 April 2025

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CHA PTER 23

NULLITY

A. VOID AND VOIDABLE MARRIAGES

The previous chapter covers divorce, which is the process for ending a

valid marriage. Nullity, or an order of annulment, is a dierent process.

It involves determining that a marriage is invalid. The legal response to

an invalid marriage is annulment, not divorce.1

The law distinguishes between two types of invalid marriages: void

and voidable. In De Reneville v De Reneville, Lord Greene MR explained

the distinction in the following manner:

a void marriage is one that will be regarded by every court in any case

in which the existence of the marriage is in issue as never having taken

place and can be so treated by both parties to it without the necessity of

any decree annulling it: a voidable marriage is one that will be regarded

by every court as a valid subsisting marriage until a decree annulling it

has been pronounced by a court of competent jurisdiction.2

In the past, the distinction was particularly important in the determina-

tion of the domicile of the parties. At common law, in the case of a void-

able marriage, a married woman’s domicile was dependent upon that of

her husband. A void marriage, on the other hand, was regarded as a com-

plete nullity and thus a woman was free to acquire a separate domicile.3

1 See the explanation in Lowe v AA, 2018 ONSC 3509 at paras 34–37 [Lowe].

2 [1948] P 100 at 111 (CA) [De Reneville]. See also Lowe, above note 1 at paras

38–42.

3 Savelie v Glouchko (1964), 45 DLR (2d) 520 (BCCA) [Savelie].