By Pamela Edwards-Swift, CFLS
Upon occasion I am asked to proceed with an annulment, instead of a dissolution ( divorce). I have been asked questions such as, “Since we have only been married six months, can’t we just annul the marriage?”
The court has the jurisdiction to annul marriages that are void or voidable.
A marriage is void from the beginning if it involves incest or bigamy. The statute specifically states that “Marriage between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.” Bigamous and polygamous marriages may also be void marriages.
A marriage is voidable if any of the following conditions exist at the time of the marriage:
- one party was under the age of 18 at the time of the marriage;
- at the time of the marriage on party was of “unsound mind” ( which means a person is incapable of understanding the nature of the marriage contract and the duties and responsibilities it creates);
- either party’s consent to marry was obtained by fraud;
- either party’s consent was obtained by force;
- at the time of the marriage either party was physically incapable of entering into the marriage state.
Anulling a marriage is not “cut and dry” and there are always exceptions to the rule. But, in speaking with an attorney, if any of these conditions exist, the attorney should be made aware of the situation.
An example of a voidable marriage, is the following: Husband and wife marry. A couple of years later husband later admits to wife that the only reason he married her was so that he could remain legally within the United States. However, he has fallen in love with her and is glad that they married. Wife says that had she known this fact, she would have never married husband. Husband obtained wife’s consent to marry based upon fraud. At this point the marriage is voidable. However, if wife does nothing and remains with husband, then the marriage may no longer be voidable. Or, if wife says she would have married husband, no matter what reason he had for marrying her, then the marriage is probably not voidable.
Whether or not there are children of the marriage, does not change the potential character of the marriage. Time does make a difference however, depending upon the circumstances. An attorney should be consulted to determine the time limit as applied to a given situation.
Pamela Edwards-Swift, Certified Family Law Specialist, 2010, 2011, 2012, 2013 & 2014; Southern California Super Lawyer