In 2016 Eleanor McCain, heiress to the McCain Foods fortune, applied to annul her 9-month marriage on the basis that her husband had tricked her into marrying him. In reply, her husband, Jeff Melanson, sought a divorce and enforcement of a Marriage Agreement entered into by the parties which would entitle him to a $5 million payout.
Ms. McCain’s pursuit of an annulment is surprising, given that they are difficult to obtain and are very rarely granted. In Alberta, an annulment will only be granted if one or both of the parties can show that there was no capacity to consent to the marriage or that there was an inability to consummate the marriage.
Some of the limited circumstances in which a party can show that there was no capacity to marry include where one of the parties was already married, where the parties are too closely related or where one of the parties was under the age of 16. A lack of capacity can also be established where there has been fraud, mistaken identity, threats or duress or extreme intoxication.
One of the most common grounds on which an annulment is sought is non-consummation of the marriage. The mere fact that the marriage was never consummated, however, will not automatically entitle the parties to an annulment, rather, there must be evidence that there was either a physical or phycological inability on the part of at least one of the parties and further that the lack of consummation was not condoned. A mere refusal by one of the parties to consummate the marriage is not enough, rather, they must show that such refusal arises out of an “invincible repugnance” to engage the spouse in the act.
If an annulment is granted, the effect is to void the marriage, it is as if the marriage never occurred. It is important to keep in mind, however, that an annulment does not disentitle a party to pursue a division of property pursuant to the Matrimonial Property Act of Alberta or to spousal support pursuant to the Family Law Act of Alberta.