What is Annulment, and When is it More Appropriate to Seek Instead of Divorce?
Petitioning for a judgment of nullity (instead of divorce) is appropriate where the validity of the marriage is in doubt, i.e. that no valid marriage ever occurred from its inception because it was void or voidable. In other words, whereas a divorce matter seeks to terminate marital status, a nullity action seeks to determine whether any such status ever existed.
A marriage may be invalid from its inception either because of problems in statutory formalization procedures (ordinarily marriage license, solemnization and authentication; or because of other legal problems that, notwithstanding proper formalization, render the marriage void or voidable (incestuous, bigamy, induced by fraud or force, party under age or consent, etc.)
An alleged marriage or domestic partnership may generally be adjudged a nullity as “void” pursuant to California Family Code Sections 2200 or 2201 or if otherwise invalid from its inception as follows:
- Incest: A marriage or domestic partnership between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood) or uncles and nieces or aunts and nephews is incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.
- Bigamy: A subsequent marriage or domestic partnership is illegal and void from the beginning if either party has a spouse or domestic partner still living unless the former marriage/domestic partnership was dissolved or adjudged a nullity before the date of the subsequent marriage/domestic partnership.
- Marriage/Domestic Partnership not lawfully contracted.
- An alleged marriage or domestic partnership may be adjudged a nullity as “voidable” pursuant to California Family Code Section 2210 as follows:
- Minority of a Party: The party who commences the nullity proceeding (on on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent unless, after attaining age 18, the party “freely cohabited with the other as husband and wife.”
- Prior Existing Marriage or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership.
- Unsound Mind: Either party was of “unsound mind” (unable to understand the subject matter or the marriage/domestic partnership contract and obligations incident thereto) unless, “after coming to reason,” he or she “freely cohabited with the other as husband and wife.”
- Force: Wither party’s consent to the marriage or domestic partnership was “obtained by force,” unless the coerced party thereafter “freely cohabited with the other” as husband and wife.
- Physical Incapacity: Either party was “physically incapable” of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be “incurable”
- Fraud: Either party’s consent to the marriage or domestic partnership was obtained by “fraud,” unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, “freely cohabited with the other” as husband and wife (the alleged intentional fraud must go to the very essence of the marriage or domestic partnership, meaning that such misrepresentation led the defrauded party to agree to enter into the marriage or domestic partnership).
For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.
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