Annulment – Do you qualify?

Annulment is the erasure of marriage as if it never existed.  This is contrasted with divorce, where the marriage is recognized but terminated. However, the reality of legally qualifying for an annulment is extremely difficult.  To qualify for an annulment, you need to prove you have a void or voidable marriage.

Void Marriage (Family Code §§ 2200-2201) – A void marriage is where there was never a legal marriage to begin with.  This includes cases of bigamy and incest:

Bigamy is when a person is married to more than one person at the same time.  For purposes of annulment, if one spouse was still legally married when the second marriage occurred, the second marriage is bigamy.  

Incest is when there is a marriage between parents, children, half or whole siblings, with an uncle/aunt or niece/nephew, or family members of any degree.  This also voids a marriage.

There is no time limitation on the filing for a void marriage.

Voidable Marriage (Family Code §§ 2210-2211)

A voidable marriage is one that is valid, but can be declared a nullity (or voided) under the following circumstances:

  • Minor Child – One of the spouses is a minor child under the age of 18 and did not go through the requisite process within the Family Code to allow a minor child to be married.
    • Who can claim this ground? A parent, guardian, conservator, or other person in charge of the minor prior to the marriage OR by the minor.
    • When can you claim this ground? Before the minor turns 18 if brought by someone in charge of the minor OR within four (4) years of the minor turning 18 if brought by the minor. 
  • Prior Existing Marriage – If one party was still legally married to his/her first spouse, but the former spouse is (1) absent and it is unknown if he/she is alive for 5 years prior to the second marriage OR (2) good faith belief that the former spouse is deceased at the time the second marriage occurs.  
    • Who can claim this ground? Either spouse of the voidable marriage or the former spouse from the first marriage.
    • When can you claim this ground? At any point in either party’s life.
  • Unsound Mind – Either party was not of sound mind (i.e. unable to understand the concept of marriage and the obligations of a marriage) at the time consent was given.  An example might be under the influence of a drug or alcohol at the time of the marriage. However, if after becoming of sound mind, you freely continue to cohabitate with the other party as your spouse, then the grounds for nullity are lost. 
    • Who can claim this ground? This proceeding can be brought by the spouse or a relative or conservator of the party of unsound mind.  
    • When can you claim this ground? It must be commenced before the death of either party.
  • Fraud – Consent to the marriage was obtained by an extreme case of fraud.  However, if after learning the full extent and having full knowledge of the fraud, the victim of the fraud continues to freely cohabitate together as spouses then the grounds of fraud are lost. Some examples of fraud warranting a nullity include concealment of sterility, an existing pregnancy, an intent to continue in a sexual relationship with another, an intent to not live with the other spouse or not have children despite a promise to do so, and an intent to marry solely for acquisition of a green card.   
    • Who can claim this ground? The party whose consent was obtained by fraud
    • When can you claim this ground? Within four (4) years of discovering the facts of fraud. 
  • Force – Consent to the marriage was obtained by force.  However, like fraud, this ground is lost if afterwards you freely cohabit as spouses with the other party who forced you into the marriage. 
    • Who can claim this ground? The party whose consent was obtained by force
    • When can you claim this ground? Within four (4) years after the date of marriage
  • Physical Incapacity – Either party is “physically incapable” (i.e. unable to engage in normal sexual intercourse) upon entering into the marriage state and it appears to be incurable. 
    • Who can claim this ground? The injured party
    • When can you claim this ground? Within four (4) years after the date of marriage.

While you may wish to file for annulment, there are some potential issues a nullity may trigger that should be considered:

  • Proof of the ground – It can be extremely difficult and therefore costly to prove the above grounds for a voidable marriage.
  • A loss of the community property rights within the marriage, except if the Court finds one or both of the parties believed in good faith that they were in a valid marriage.  
  • A loss of spousal support, except if the Court finds you to be a putative spouse.  A putative spouse is someone who believes in good faith that their marriage is legal and valid and therefore is given rights as if the marriage had been legally entered. 

Regardless of whether you file for an annulment, a legal separation, or a divorce, you will still have the rights to seek remedies for a domestic violence restraining order, custody and visitation orders regarding children of the marriage, and child support orders.  

If you believe you qualify for an annulment or would like to discuss the potential issues that may arise, the attorneys at Moore Law for Children can help you.  Call us to discuss this and your other family law matters further.