Last week, Women's National Basketball Association star, Britteny Griner's request to annul her 28 day marriage to fellow player, Glory Johnson, was rejected by an Arizona judge. Griner sought an annulment on the basis that their marriage was 'void based on the fraud and duress.'

Griner says that she would not have married Johnson if she had known that Johnson was still in touch and having intimate relations with her ex-boyfriend during their courtship. Griner further claimed she felt pressured into the marriage because of Johnson's threatening statements. Media reports also reference an incident just two weeks before the wedding where both women were arrested for assault and disorderly conduct.

In Ontario, an annulment is only granted if there is some defect existing at the time of the marriage ceremony preventing the marriage from coming into legal existence. An annulment differs from divorce in that the essential elements of a marriage were not met and thus a valid marriage never existed. A valid marriage in Ontario requires two forms of validity under the Marriage Act: essential and formal validity.

Formal validity governs the requirements relating to publishing the banns, the person solemnizing the marriage, and the issuing of the marriage license. On the available facts, there does not appear to be an applicable formal defect in the Griner and Johnson marriage.

Essential validity, on the other hand, deals with capacity of the parties to marry. Under Ontario law, incapacity to marry could arise from:

• A prior existing marriage;
• A party being under the age of majority;
• Lack of consent due to mental incapacity, intoxication, limited purpose marriage, duress, fraud, or mistake.
• Lack of capacity to consummate the marriage

According to S. (A.) v S. (A.), a valid marriage requires free will of the parties entering into the marriage. To have her marriage declared voidable on the basis of duress, Griner must satisfy the court that her state of mind was so overcome by oppression that she had no free choice. The issue is whether Griner's consent at the time of the marriage ceremony was real, understanding, and voluntary with reference to her state of mind.

Griner claims she signed the marriage documents under duress due to 'pressure' from Johnson's threats, ultimatums, and demands. However, it may be difficult to establish that these constituted oppression so overwhelming that she had no choice but to consent.

Griner's comments that she "would not have married" Johnson if she were made aware of Johnson's ongoing relationship with her ex-boyfriend suggests that Griner may still have had free choice in the matter. Though Griner made these comments in her filings to substantiate a claim of fraud, they may be helpful in assessing Griner's state of mind at the relevant time. The very fact that Griner claims she would not have married Johnson if she were aware of the infidelity implies that she could have and would have walked away from the engagement and marriage ceremony itself. If this were so, then it seems unlikely that Johnson posed enough of an oppressive threat to Griner that the basketball player would have believed she had no choice but to marry Johnson; even if she discovered the infidelity prior to the marriage.

With what little we know about the circumstances, it appears unlikely that Griner could successfully seek an annulment if her matter were heard in an Ontario family court. Her only option is divorce.