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Tuesday, June 10, 2008

What Is An Annulment and How Do I Get One?

Britney Spears did it. Rene Zellweger did it. So did Nicky Hilton.


WHAT IS AN ANNULMENT AND HOW DO I GET ONE?

Whereas a divorce ends a marriage, an annulment declares that the marriage never existed. This means, if you had your marriage annuled, you can tell people you were never married without lying. Since there is no marriage, there is no community property, and no spousal support. This, of course, is very attractive to most people, and that is why I am constantly asked by clients to annul their marriage.

Unfortunately, it is not easy to get an annulment. Let's look at the difference between "void" and "voidable" marriages. "Void" marriages cannot exist. Examples include bigamy and incest. If you are already married, your second marriage is void. You cannot marry your brother.

Then there is a "voidable" marriage. These marriages are valid until annuled. These include:
Minority Of A Party: The party who commences the nullity proceeding (or 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." [Ca Fam § 2210(a)];

Prior Existing Marriage Or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership, but the subsequent marriage or domestic partnership is not illegal and void because within the § 2210(b)(1) & (3) "voidability" rule (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead. [Ca Fam § 2210(b)];

Unsound Mind: Either party was of "unsound mind" (unable to understand the subject matter of 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." [Ca Fam § 2210(c)];

Force: Either 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. [Ca Fam § 2210(e)];

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." [Ca Fam § 2210(f)];

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. [Ca Fam § 2210(d)]

Most people wish to annul their marriage based on fraud. So what constitutes fraud?



The long-standing rule in California is that marriage can be annulled for fraud if the fraud relates to an issue that is "...vital to the marriage relationship". The fraud must go to the "heart or essence of the marital relationship." Some examples are:

1) A secret intention not to engage in a sexual relationship after marriage with the spouse;

2) A secret intention of one spouse never to live as husband and wife in same residence;

3) The concealment by a party at the marraige that she was pregnant by another person;

4) Concealment of sterility;

5) A secret intention to continue a romantic affair with a third person.

Basically, the fraud has to be related in some way to sexual or procreative aspects of the marriage.

Here is a frequently asked question: What if I discovered that he/she married me for a green card? Is that fraud sufficient?

The answer is NO, unless it was coupled with a fraud relating to the essence of the marriage.

So unless the fraud is related to sex or procreation, you cannot get an annulment. In other words, if you have had sex with your spouse, even if he/she only married you for a green card, the annulment will be denied. Even if he/she married you for "money", that fraud alone is not sufficient.

So what happens if your annulment is denied? If you request it, the case will then proceed in the alternative as a divorce.

12 comments:

Houstonlaw said...

The option is really attractive and interesting but really hard to prove in court.

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Unknown said...

Is it considered fraud if you get married because your wife says she could see herself having kids with you and then 7 years down the road she tells you that she doesn't want them?

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