Archive for the ‘annulment’ Category

When Can a Marriage Be Terminated by an Annulment?

Saturday, February 26th, 2011

An annulment is a type of matrimonial action commenced in the New York State Supreme Court under Article 9 of the Domestic Relations Law (§§140-146) to declare a marriage null and void. There are two types of marriages may be subject to an annulment: (1) a void marriage, which is void at its inception, and, therefore, never was legitimate, and (2) a voidable marriage, which can be voided only by a court judgment. A voidable marriage is void from the date the judgment of nullity is entered.

The following types of marriages are void: incestuous; bigamous; and marriages performed by an unauthorized person.  An incestuous marriage occurs between an ancestor and a descendant, such as a father and daughter, between siblings, or between an uncle and niece or an aunt and nephew.  A bigamous marriage occurs when one spouse marries a third person despite the fact that his or her prior spouse is still alive and the marriage has not been dissolved. A marriage performed by an unauthorized person usually involves a marriage that was performed by a civil official or a religious official who does not meet New York’s requirements for officiating a marriage ceremony.

The following types of marriages are voidable: when one or both spouses are under the age of consent, when one or both spouses are mentally incapable to consent to the marriage, when one or both spouses are physically incapable to consent to the marriage, or when one or more spouses is coerced into the marriage.

In order to give a valid consent to marriage in New York State, the person giving such consent must be at least eighteen years old.  In order for someone younger than eighteen to marry, written consent of both of the underage spouse’s parents is required. A person under the age of sixteen may marry, provided that both parental consent and a judge’s order are obtained. No one under the age of fourteen is permitted to marry.

A person under the age of eighteen as well as a parent of the underage spouse and/or the underage spouse’s guardian may seek to have the marriage annulled. It is in the court’s discretion to grant an annulment due to the spouse’s age, taking into consideration all of the facts and circumstances of the marriage.  The right to seek an annulment due to being under the age of consent terminates when the spouse reaches the age of 18.

In an action to determine a marriage voidable due to want of understanding, the court will decide if the parties were capable of fully understanding the nature of the marital relationship and its consequences.  An annulment action for want of understanding may be based upon the mental retardation or mental illness of a spouse.  An action brought due to mental illness may be brought by the mentally ill spouse when the illness has been cured, so long as he or she does not continue to cohabit with the spouse, which ratifies the marriage, i.e., makes it valid.  The spouse who is not suffering from mental illness may file to have the marriage determined voidable if: the other spouse was mentally ill at the time of the marriage, the non-mentally ill spouse was not aware of the illness, the action was brought as soon as the non-mentally ill spouse learned of the illness and the mental illness is present when the annulment is sought.

A spouse may seek to have a marriage declared voidable when the other is unable to have sexual relations due to an incurable condition (not sterility). It is commonly referred to as a failure to consummate the marriage. An annulment action brought for this cause must be filed within five years after the marriage.

Both parties to a marriage must knowingly consent to the marriage of their own free will. A marriage may be annulled if either party consents to the marriage due to duress, force or fraud. An action for this cause may be brought by a spouse, a parent of a spouse or a relative of a spouse who has an interest in annulling the marriage.

Finally, an action seeking an annulment may be brought by one spouse if the other spouse develops an incurable mental illness lasting five or more years. The mental illness can develop after the marriage.

In my practice, it is not common to see annulment actions since they are subject to very specific legal and factual requirements. If you think that you may be entitled to an annulment, you should discuss these issues with a divorce lawyer.