A decree of nullity is often referred to as an annulment. Like a divorce, an annulment is a way of ending a marriage. However, unlike a divorce, a decree of nullity would mean that a marriage would be deemed as having never existed. A divorce recognises that there was a valid marriage, and a divorce order serves to dissolve that relationship. An annulment can only be obtained if the marriage is a void or voidable marriage. This then begs the questions of what is a void marriage, and what is a voidable marriage?
Void marriages are those that are deemed to have never existed due to certain factors. In Malaysia, a marriage is generally void if any of the circumstances below are fulfilled:
(i) The marriage is a second marriage (where one spouse is already lawfully married to another),
(ii) Where one or both parties were below the age of majority (i.e. 18) and no special exemptions/exceptions were obtained,
(iii) Where the parties are in a ‘prohibited relationship’ and no special exemptions were obtained (examples of ‘prohibited relationships’ include parent-child, grandparent-child, and sibling relationships); or
(iv) The parties are not respectively male and female.
In contrast, a voidable marriage is one which is deemed valid until it has been annulled. The grounds for a marriage to be voidable are:
(i) Incapacity to consummate the marriage;
(ii) Wilful refusal to consummate the marriage;
(iii) No valid consent to the marriage;
(iv) At the time of marriage, either party was incapable of giving valid consent (e.g. a mentally disordered person);
(v) At the time of the marriage, the respondent was suffering from a venereal disease;
(vi) At the time of marriage, the wife was pregnant by some other person that her husband.
However, an annulment will not be granted if the petitioner (the person initiating the annulment) was aware of the circumstances above and nevertheless consented to the marriage and lead the respondent (the other party to the marriage) to believe that he would not seek to annul the marriage on such grounds. The court may also deny an annulment if it is of the opinion that it would be unjust for such a decree to be granted.
It is possible to seek annulment at any time, unlike a divorce which would generally only be granted after 2 years’ of marriage.
We hope that this short article has provided some insight into the differences between an annulment and a divorce. If you require advice or assistance with family law matters, please do not hesitate to get in touch with us.
*This article is for informational purposes only and is not intended to provide legal advice. If you are interested in an annulment, please reach out to us for a friendly consultation.