Annulments
Annulments
If certain conditions existed at the time parties married, the parties may be able to seek an annulment rather than a divorce. An annulment ends a marriage, like a divorce. Unlike a divorce, however, after an annulment it is like the marriage never happened because it was never legal.
Family Code § 2210 states the reasons for which a marriage is voidable and may be adjudged a nullity, which reasons are set forth below:
Under 18
A marriage is voidable and may be adjudged a nullity if the party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as his or her spouse.[i] A proceeding to obtain a judgment of nullity of marriage for this reason must be commenced by either (1) the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent, or (2) a parent, guardian, conservator, or other person having charge of the minor, at any time before the married minor has arrived at the age of legal consent.[ii]
Prior Existing Marriage
A marriage is voidable and may be adjudged a nullity if the spouse of either party was living and the marriage with that spouse was then in force and that spouse (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.[iii] A proceeding to obtain a judgment of nullity of marriage for this reason must be commenced by (1) either party during the life of the other, or (2) the former spouse.[iv]
Unsound Mind
A marriage is voidable and may be adjudged a nullity if either party was of unsound mind at the time of the marriage, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her spouse.[v] A proceeding to obtain a judgment of nullity of marriage for this reason may be commenced by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.[vi]
Fraud
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.[vii] A proceeding to obtain a judgment of nullity of marriage for this reason must be commenced by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.[viii]
Force
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as his or her spouse.[ix] A proceeding to obtain a judgment of nullity of marriage for this reason must be commenced by the party whose consent was obtained by force, within four years after the marriage.[x]
Physical Incapacity
A marriage is voidable and may be adjudged a nullity if either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.[xi] A proceeding to obtain a judgment of nullity of marriage for this reason must be commenced by the injured party, within four years after the marriage.[xii]
To be able to obtain an annulment, a party must be able to prove to the judge that at least once of these above reasons exists. Note that the length of the marriage is not necessarily relevant. Obtaining an annulment can be more difficult that people often assume, and consulting an attorney is likely a good idea if obtaining an annulment rather than a divorce is important to you.
[i] Family Code § 2210 (a).
[ii] Family Code § 2211 (a).
[iii] Family Code § 2210 (b).
[iv] Family Code § 2211 (b).
[v] Family Code § 2210 (c).
[vi] Family Code § 2211 (c).
[vii] Family Code § 2210 (d).
[viii] Family Code § 2211 (d).
[ix] Family Code § 2210 (e).
[x] Family Code § 2211 (e).
[xi] Family Code § 2210 (f).
[xii] Family Code § 2211 (f).