Annulment in New York, NY is a court decree declaring that the marriage was never valid in the first place.
Annulment in New York, NY can only be requested based on specific grounds under Article 2 of Domestic Relations Law (DRL), such as bigamous marriage, incestuous marriage, underaged spouse, mentally ill spouse, physical incapacity to consummate marriage, and force, duress, or fraud.
Even if a marriage is annulled or declared void from the beginning, the children are still considered legitimate.
Period to File an Annulment
Bigamous and incestuous marriages are void marriages. They can never be ratified or validated. They will always be considered void, despite the passage of time. For this reason, there is no time limitation to file an annulment in New York, NY based on these grounds. The invalidity subsists forever, and for as long as any of the spouses is alive, such spouse can file for annulment.
Bigamous marriages are second marriages contracted by a person who is still married (DRL § 6). For example, John is from Ohio where he was already married to Jennifer. He moved to New York and contracted a second marriage to Rachel without divorcing Jennifer. Is John’s first marriage to Jennifer valid? Assuming that all the requisites to celebrate a marriage in Ohio are present, then John’s first marriage to Jennifer is valid. How about John’s second marriage to Rachel, is it valid? No, it is clearly not valid because it is a second marriage contracted while his first valid marriage to Jennifer was still subsisting. No amount of time of John and Rachel living together can validate their marriage. Rachel can file for an annulment ten, twenty, thirty years after the celebration of marriage, and such case for annulment will still prosper because a bigamous marriage will always be a void marriage.
Assuming that John was legally separated from Jennifer when he contracted his second marriage with Rachel, is Rachel’s marriage to John valid? Still, the marriage is not valid and considered b bigamous. A legally separated spouse does not entitle such spouse to marry against because he is still technically and legally considered to married to that spouse.
Assuming that during John’s marriage to Rachel, he was able to get a divorce from Jennifer. Is John’s marriage to Rachel valid? The marriage is still not valid. John and Rachel have to be married again after the divorce decree is issued in order for the marriage to be considered valid.
Assume that there was no second marriage. Instead John was married to Jennifer, who was his long-lost biological daughter, is John’s marriage to Jennifer valid? No. John’s marriage to Jennifer is not valid because it is an incestuous marriage. As a void incestuous marriage, it can never be ratified, and no passage of time can make the marriage valid. Any of them can file a case for annulment in New York, NY at any time, and it will still prosper.
An incestuous marriage is a marriage between a legitimate or illegitimate: ancestor and descendant; brother and sister (whether by whole or half-blood); or uncle and niece or aunt and nephew (DRL § 5).
A marriage is voidable when one of the spouses: was under 18 when the marriage was contracted; was incapable of consenting to the marriage for want of understanding; was prevented by physical incapacity from consummating the marriage; was incurably mentally ill for a period of five years or more; consented to the marriage due to force, duress, or fraud (DRL § 7). In these cases, any of the spouses may file for annulment, but there is a time period for filing the petition. If one of the spouses was underaged, the petition should be filed within a reasonable time when the person has attained 18 years of age (the age of legal consent). For spouses whose consent was obtained through force, duress, or fraud, the petition for annulment in New York, NY should be filed within the within the civil state of limitations. For spouses who did not physically consummate the marriage, it must be filed within 5 years from the marriage. When one of the spouse is mentally ill . Otherwise, the spouse may be considered to have ratified or consented to the marriage despite knowledge of the ground of annulment.
For example, Aaliyah married R. Kelly in New York when she was 15 years old. Is the marriage valid? No, because Aaliyah was underaged at the time of marriage. Since she is under the age to give legal consent (which is 18 years old), the marriage is voidable, or void from the time its nullity is declared by the court. Assuming Aaliyah turns 18, freely cohabited with R. Kelly for 10 years thereafter, and then filed a case for annulment 10 years after turning 18, will Aaliyah’s case for annulment prosper? No, because Aaliyah is presumed to have validated the voidable marriage by consent.
Suppose that Aaliyah married Elton, instead, when both were of legal age. However, one year after being married, both Aaliyah and Elton have still not consummated their marriage (had sex). Aaliyah then files a case for annulment in New York, NY, will such case prosper? Yes, because she filed it within 5 years from the marriage.
Assuming that Aaliyah continued to cohabit freely with Elton for 10 years after the marriage without the marriage having ever been physically consummated, can Aaliyah file a case for annulment in New York, NY after 10 years? No, because she did not file it within 5 years from marriage and is presumed to have consented to the marriage despite knowing of the ground of annulment.
Annulment vs. Divorce
In annulment, since one has to allege and prove specific grounds, annulment in New York, NY has to undergo trial where one has to present evidence in order to get an annulment decree. On the other hand, one can get divorced in New York, NY without going through trial on the ground of irretrievable breakdown of marriage for more than 6 months. Thus, it is cheaper to get divorced than annulled. In these cases, it does not make financial sense to file for annulment when one can get divorced easily.
One major difference, however, between an annulment and divorce is that in annulment, since the marriage is considered void from the beginning, the court generally restores the parties to their financial status before the marriage. Thus, if one has separate assets to protect prior to the marriage, then an annulment, despite its legal costs, may be a more financially viable option.
There are three basic ways to end a marriage: (i) divorce; (ii) annulment; or (iii) death. Of these three methods, the one that is least used and indeed, in rarely used, is an annulment. In general terms, it is much harder to get an annulment than it is to get a divorce. This is how you can get an annulment.
Similar to getting a divorce, to start an annulment, you must file a Summons and a Complaint. The Complaint will state the basic legal reasons why you are seeking an annulment. You can also request both an annulment and a divorce. In this manner, if for some reason you do not qualify for an annulment, at least you can get a divorce.
To get an annulment, you have to satisfy certain legal requirements. There are two general types of annulments. First type is that your annulment was “void at its inception.” This means that the marriage technically never happened and that you are not really “married.” Despite this fact, it is wise to have a court grant you an annulment declaring that your marriage was void from its inception.
The second type of annulment means that your marriage is “valid”, but, due to certain facts you can. There are three categories of “marriages” that are void from their inception. This means that the marriage technically never happened and that you are not really “married.”
Despite this fact, it is wise to have a court grant you an annulment declaring that your marriage was void from its inception.
Void at its inception:
As stated, if your “marriage” fits into one of the following categories, then it is void at its inception, and you were never really “married”:
- Incestuous marriage: A marriage between very close relatives, for example: a Father and Daughter, Brother and Sister, Aunt and Nephew are all examples of incestuous marriages. Not only are these marriages illegal, a court can also order a fine or even a prison term for parties that enter into an incestuous marriage.
- Still married to your former spouse or married to more than one spouse: New York does not recognize any bigamous marriages. You can only be married to one person at a time. Sometimes, one spouse will “honestly” believe that their divorce was finalized and get married, however, this is still considered a bigamous marriage. If you are married and you filed for a divorce, you have to wait until your Judgment of Divorce is signed before you get re-married.
- Married by someone not authorized to do so. There is an authorized list of people who can perform a marriage. This list includes, but is not limited to, a religious leader, a leader of the Society for Ethical Culture, mayors, some magistrate, and judges. If your marriage was performed by someone who was not authorized to do so, you are not married. In those situations, if you were “married” by an unauthorized person, your marriage, like the other two in this category is invalid from the start of the so-called marriage.
Other types of marriages that can be annulled:
Unlike the three categories stated above, if you fall into one of these categories, your marriage is “valid” until an annulment is granted.
- Age of consent: If both parties are over 18 years of age, then the age of consent has been met. In New York, no one under the age of 17 years old can get married. If one of the parties is 17 years of age, then a judge’s approval is required for them to get married. If later on, you want to have the marriage annulled because you were 17 at the time you got married, you can still request for it to be annulled.
- Incapable of consent. If, at the time of the marriage, the person could not mentally understand that he/she was getting married, that marriage may be able to be annulled.
- Incapable of entering into marriage due to physical cause. If, at the time of the marriage, the person was unable to have sexual relations, then the marriage may be able to be annulled.
- Marriage was due to force, duress or fraud. If the marriage was brought about due to force, duress or fraud, then it may be annulled.
- Incurable mental illness for five or more years. This category does not require that the mental illness exhibited at the time of the marriage. Anytime after the marriages, if one spouse develops an incurable mental illness for five years or more, then the marriage may be annulled.
If you are granted an annulment, your marriage remains in the State’s record. If you had children, an annulment does not affect their status, they are still legitimate. As with a divorce, if you are granted an annulment, the court is still empowered to make awards of child custody, child support, spousal maintenance and equitable distribution.
States have their own laws regarding annulment and the various types of marriages that are prohibited (such as blood relatives). New York annulment and prohibited marriage laws govern the grounds for annulment (a court ruling that the marriage was never valid in the first place), time limits for obtaining an annulment, and the various scenarios in which a marriage would not be recognized by the state.
An annulment will only be granted if a marriage was invalid in the first place. Contrary to popular belief, annulment is not available if the marriage has yet to be consummated, or if the marriage has only been for a short time.
Grounds for Annulment
New York law has a few very specific grounds for an annulment. Those are an undissolved previous marriage, one spouse was underage at the time of marriage, one spouse is physically incapable of having sexual relations, consent to marriage by force, consent to marriage by fraud, or incapability of consent to marriage.
Time Limit for Obtaining an Annulment
There is no time limit for obtaining an annulment in New York. This is because the marriage is not valid, and no amount of time passed will ever validate the marriage. However, there are a few circumstances which validate a marriage, and remove the option of annulment.
If one spouse has a previous marriage, an annulment is always an option. If one spouse is underage at the time of marriage, the marriage may be annulled only until the underage spouse is of legal age and cohabitates with their other spouse. If the marriage is invalid due to a mental illness, annulment is an option as long as the mental illness continues. The marriage is validated if the person with a mental illness freely cohabits with their spouse after they are restored to a sound mind.
If the grounds for the annulment are a physical incapacity to consummate the marriage, an annulment is only an option within five years of the marriage, as long as the incapacity was not known at the time of marriage. If the marriage is a result of force, duress, or fraud, New York marriage law defers to the timeline allowed to sue for those civil wrongdoings.
New York does not allow marriages between ancestors and descendants, siblings regardless of whole or half blood, or between the siblings of ancestors and descendants. While same-sex marriage was never specifically prohibited in New York, the legislative and litigation history of the issue is extensive, with many lawsuits and attempts to pass legislation until a 2011 bill was successful in granting marriage rights to same-sex couples. This decision was ratified on a federal level when the U.S. Supreme Court ruled in Obergefell v. Hodges that denial of marriage to same-sex couples was a violation of the constitutional guarantee of equal protection.
Below are some general highlights of these various laws, found in the New York Family Code. See Details on State Annulment and Prohibited Marriage Laws for more information.
- Undissolved: Anytime during lifetime of parties;
- Underage: Until legal age of consent and cohabitation;
- Mental: Anytime during which illness continues, unless freely cohabits after restored to sound mind;
- Physical incapacity: Within 5 yrs. of marriage if unknown at marriage;
- Force, duress, fraud: Within civil statute of limitations unless voluntary cohabitation after discovery
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
New York Codes and Court of Appeals Decisions
If you have additional questions about New York’s annulment and prohibited marriage laws, click on the following links:
Learn More About New York Annulment and Prohibited Marriage Laws from a Lawyer
If you’d like to know more information about the possibility of an annulment or a divorce in New York, you should speak with an experienced divorce lawyer near you. An attorney will be able to answer questions that are specific to your case, and let you know if an annulment is a possibility for you or if you must go through the divorce process instead.
When a marriage ends, in some cases, you may want to pursue a divorce option called annulment of marriage. If you are considering obtaining an annulment of marriage in NY, you should understand how the state's annulment laws work and why you might prefer to annul your marriage rather than get a divorce. This guide will explain when an annulment of marriage in New York can be obtained, and what couples are eligible. You'll also learn why in most cases, an annulment of marriage in NY is not significantly different from a divorce in its effects.
What is Annulment?
When a couple divorces, the marriage is recognized as having been valid and existing, but the couple has agreed to end the relationship. When a couple obtains an annulment of marriage in New York, the annulment makes the marriage non-existent retroactively, so that it is as if the couple had never been married at all.
Conditions for Annulment of Marriage in New York
If you want to obtain an annulment of marriage in NY, you will have to show that your marriage was either void or voidable. A void marriage is one where, no matter how long you have been married, the marriage can never be legally valid and you can always obtain an annulment of marriage in New York. The only reason that this happens is that one or both parties were ineligible to marry in the first place—for instance, if the couple is too closely related to allow a legal marriage, or if one or both people in the couple were already married at the time of the ceremony and had not obtained an annulment or divorce.
Voidable marriages, on the other hand, require you to present evidence to a judge and have the marriage ruled upon. If one or both people in a couple is incurably insane for five years or more, or if one or both people are incurably unable to engage in sexual intercourse. In order to be granted an annulment of marriage in NY, you or your spouse will have to be able to prove this in court and show that you have been residents of New York for at least one year.
Declaration of Nullity
When you obtain an annulment of marriage in New York, a declaration of nullity will be issued by the court. This will divide your property, child custody, and take care of any other issues pertaining to your separation from your spouse. This procedure is functionally equivalent to a divorce, and because it is significantly harder to obtain an annulment of marriage in NY than a divorce, most couples prefer to divorce even if they may have been eligible for annulment.
Religious Annulment of Marriage in New York
In addition to civil annulment, some religious groups allow for private religious annulment of marriage in NY. The rules for religious annulment are not set by the state of New York, so the rules for obtaining an annulment of marriage in New York that satisfies church conditions are up to the church itself. In some religious traditions, it will be impossible to have a church wedding to a second partner unless you obtain an annulment of marriage in NY rather than a divorce.
You have options when it comes to ending a marital relationship in New York. For some, a divorce or legal separation is the path to go. For others, an annulment may be a better choice.
Unlike a divorce, an annulment declares that your marriage is no longer valid. But how else does divorce and annulment differ? What requirements must be met to get an annulment? Where do you even begin?
I sat down with divorce attorney Robert Pollack to help explain the legal process, how to file, and the grounds for an annulment in New York.
What is a marriage annulment in NY?
An annulment of marriage means that the marriage is null and void. Essentially, if an annulment of marriage is granted, the Court is essentially declaring that the marriage never existed in the first place.
What is the difference between an annulment and a divorce?
A divorce can only occur if there was a marriage. In an annulment, it’s based upon certain facts and circumstances that the Court deems to be true, the Court ultimately declares that there was no valid marriage from the beginning. There is basically no difference in the relief that the Court can grant in an annulment as opposed to a divorce; alimony, child support, child custody and equitable division of property.
What are the grounds for an annulment?
There’s a whole list of reasons you might be able to get an annulment:
- The absence of a spouse that’s presumed dead
- If a spouse was too young to be married, meaning, below the “age of consent to marry.”
- A party who got married under force, duress or some kind of threat
- The person who was married and wasn’t mentally capable to understand the nature of what they were doing
- Physical incapacity to consummate the marriage (if the person is infertile, unable to conceive, you can seek an annulment under that).
- Fraud going to the essence of the marriage.
The most frequently used basis for annulment is fraud.
For example, if one spouse said “I want to have children,” and later on declared “I never really wanted to have children with you,” this is a fraud going to the essential essence of the marriage because the other spouse was relying upon having a family when that person consented to be married.
This fact pattern rarely actually happens. But people testify to it under oath, with the aid of testimony from a required “corroborating witness,” and many times, that testimony is determined to be a sufficient basis for the Court to grant the annulment.
What other reasons would a person seek an annulment?
Due to particular requirements of certain religions, religious annulment, as opposed to civil annulments, are required.
Under New York law, when a person gets a divorce, that person must sign an affidavit which compels that person to cooperate with their former spouse if the former spouse, for religious reasons, needs to obtain a religious annulment.
How long does someone have to annul a marriage in New York?
There’s no time frame. It’s a misconception that annulment must occur quickly. It may be filed at any time. It could be the next day, it could be 20 years down the road.
It always comes down to if and when the grounds for annulment are met. When the facts that meet those grounds ultimately come out, that marriage can be annulled.
How does someone get an annulment in New York?
They file for an annulment the same way they file for a divorce or a separation. It’s done with a summons. Everything starts with a summons, but instead of asking the court to grant a divorce or a legal separation, it’s asking to grant an annulment.
You should know that the court does not provide specific forms for annulment.
How much does it cost to get an annulment?
Generally, annulment costs will vary depending upon the complexity of the case and whether the case will need to go to trial, or in some instances, the Court may grant the annulment “on the papers” thereby avoiding the expense of Court appearances.
Since most divorce attorneys charge by the hour, the case costs are determined by the number of hours the attorney expends on the case, plus applicable Court costs. This is similar to how divorces are charged by attorneys.
Can I remarry after an annulment?
Yes. You are eligible to remarry just like you could after a divorce.
Can an application for annulment be denied?
It’s certainly possible for an annulment to be denied.
If the court doesn’t believe your evidence regarding the grounds for an annulment is credible, then, you failed to meet your burden of proof and the Court will dismiss the case. This is true with both annulments and divorce cases.
Can I appeal an annulment that’s been denied? What’s the appeal process like?
It is possible to appeal an annulment that’s been denied.
The appeal process is more expensive than the annulment itself. The appeal process in New York is very extensive and expensive.
First, you have to file a notice of appeal and serve that on the other side.
Then you have to “perfect the appeal” by filing briefs and supporting facts from the Court record from the trial court, which in this case would be the Supreme Court in New York. Appeals are made to the Appellate Division of the Supreme Court. Of course, the other side gets to oppose your appeal.
Procedurally, as explained above, you have to file briefs. You have to get the court record. Everything has to be printed for the Appellate Division, in 15 copies to an appellate printer.
It’s a huge amount of work and expense. I’ve never seen anybody appeal an annulment. It’s generally not worth it from a cost/benefit perspective.
There are two situations in which you can annul your marriage in New York.
One occurs when circumstances have made your marriage voidable, even though it may have been valid at first.
The other is when your marriage was never valid in the first place.
There are grounds to annul a marriage pertaining to either situation. According to the New York State Senate, parties to the marriage can maintain the annulment action, and in some cases, third parties can do so on the behalf of you or your spouse.
Actions for annulling a voidable marriage
A marriage can become voidable on grounds of incurable mental illness or physical incapacity for the marriage state on the part of either you or your spouse.
In either case, it is important that the condition rendering the marriage voidable be incurable.
Your spouse must be mentally ill for at least five years before you can take annulment action, but you can only take annulment action on the grounds of physical incapacity for up to five years after your marriage began.
Declaring nullity for a void marriage
In these cases, the marriage was never valid in the first place.
The annulment simply recognizes this.
Your marriage may be void if either you or your spouse gave consent to the marriage under duress or because of fraud.
Furthermore, New York has an age of consent that people must attain before getting married. Your marriage is void if either you or your spouse was under the age of consent at the time you married.
A marriage is also void if one of the spouses lacks the mental capacity to have consented to the marriage or one spouse is still married to a previous partner who is still living.
A marriage can end one of two ways: divorce or annulment. While divorce dissolves a legal marriage, an annulment retroactively determines the marriage was void or invalid from the outset. People with religious or cultural objections to divorce may view annulment as an attractive alternative means to end their marriages. However, only in very limited circumstances will the state of New York grant an annulment.
Void and Voidable Marriages
If a union is bigamous/polygamous, incestuous, or performed by an unauthorized person, the marriage is considered “void.” Because void marriages are unlawful, they will never be recognized as valid in the state of New York, regardless of the couple’s wishes. Marriages obtained under other circumstances may be considered “voidable.” In these cases, one or both spouses must ask the court to grant an annulment and prove they have legal grounds to nullify the marriage.
Grounds for Annulment
There are only five recognized grounds for annulment in New York. A person requesting an annulment must be able to prove at least one of the following:
- At least one spouse was a minor (under the age of 18) when they were married;
- At least one spouse suffered a mental incapacity at the time of marriage that rendered them unable to consent;
- The union took place under fraud, coercion, or duress;
- At least one spouse suffers from incurable mental illness or insanity; or
- At least one spouse is unable to have sexual intercourse.
In some circumstances, the claim to annulment is “waived” even if the grounds are valid. For example, if a couple married at the age of 16 and continued to live together as husband and wife until they were 21, they would no longer have a claim since they freely cohabited after they reached the age of consent. Similarly, if one spouse defrauds the other, but the couple stays together once the fraud has been discovered, the deceived spouse no longer has a claim to annulment.
How to Get an Annulment
The process for obtaining an annulment can be more complicated than getting divorced. Unlike divorce, there are no “uncontested” annulments that allow the parties to avoid court. Each petition requires a hearing and a trial. The petitioner (the person requesting an annulment) must present evidence that proves at least one of the grounds for annulment has been met. Because the proceedings involve legal paperwork and knowledge of state laws, rules, and procedures, obtaining a lawyer with experience in annulments is recommended. An experienced Dutchess County divorce lawyer can determine if you are a good candidate for annulment and help you present your case to the court.
Contact a Professional Divorce Lawyer in Albany
For more information and legal assistance, call the Colwell Law Group, LLC. With offices in Albany and Ballston Spa, our skilled and experienced attorneys are committed to serving the communities of upstate New York. The Colwell Group concentrates on family law issues including annulments, divorce, child custody and visitation, alimony and child support, domestic violence, and prenuptial agreements. Contact us today to schedule a consultation.
An annulment is a remedy to declare null and void a marriage not legal to begin with.
In New York, annulment is available when:
- One spouse was legally married to someone else at the time (sometimes called bigamy)
- One of the spouses was under the age of consent (18)
- The couple is too closely related to be legally married (incest)
- One of the parties could not legally consent to the marriage because of mental illness or impairment
- One of the spouses was forced into the marriage by threats or fraud, including lies like a faked pregnancy
- It is discovered that you and your spouse will never be able to have sexual relations
The standard of proof of an annulment is higher than for a divorce and requires evidence be corroborated.
Sometimes, the facts that could be the basis of an annulment are discovered or revealed soon after you get married. But even if those facts are uncovered years later, you may still be able to seek an annulment.
For most reasons listed above, there is no time limit for seeking an annulment. If a divorce was invalid when it was entered into and it remains invalid it can be annulled no matter how many years pass.
When can I annul my marriage in New York ?
However, there are certain circumstances where the passage of time or the occurrence of certain events will terminate the ability to obtain an annulment. These include:
- Underage spouse. An annulment may be obtained only until the underage spouse is of legal age and cohabitates with their other spouse.
- Mental illness. While annulment is an option as long as the mental illness continues, it will no longer be if the spouse with the mental illness freely cohabits with their spouse after they are no longer mentally ill.
- Inability to consummate. The physical inability to have sexual relations can be the basis of an annulment only during the first five years of the marriage so long as the inability was not known at the time of marriage.
If you have questions or concerns regarding New York annulments or any other matters relating to divorce, please give us a call at (212) 683-9551 of fill out our online form to arrange for a consultation. We look forward to assisting you.
Yes, void marriages can be decreed a non-event or an annulment can be granted of a marriage if certain specific grounds are met. The law on annulments is contained in the New York Domestic Relations Law Article 9. If someone was still married, and their spouse still living, when the next marriage takes place, that next marriage is what is called voidable. A case needs to be started, in a New York Supreme Court, to have the marriage declared void in that situation. Of course bigamy is also a felony in this state, but the action in Supreme Court to have the marriage voided is a civil case, not a criminal proceeding. This action can be started by either the husband or wife in that second marriage or by the first wife or husband.
If one of the parties to the marriage was not old enough to consent to getting married, an annulment can be granted. It should be noted that this action can only be started by the person who was under the age of consent, or someone acting on his or her behalf (like a parent or guardian), and not by a party who was over the legal age of consent at the time of the marriage. Also, if the underage person becomes legal age, and then voluntarily lives with the other as wife or husband, afterward then they can not maintain an action for an annulment.
A relative of someone that is mentally retarded and has an interest in annulling the marriage of the retarded person, can initiate the action during the life of either the wife or husband. Annulment cases can proceed by a relative of a mentally ill person, if one of the parties to the marriage was mentally ill, while the illness continues, or after the mentally ill person dies while the illness continues. If the mentally ill person becomes well, that person can proceed with an annulment, however, only if they did not feely live together as husband and wife after the formerly ill person became well. The spouse of the mentally ill person, that was unaware of the illness when they got married, can start an annulment if the spouse was in that condition when the marriage took place. These cases can be brought by someone called a “next of friend”, in some instances, if no relative starts an annulment on behalf of the mentally ill or retarded person. Next of friends are someone that acts on behalf of the incapacitated person, like a parent, relative, or guardian, but does not have an official legal relationship to that person.
Marriages can be annulled on the grounds that one side of the marriage was physically unable to consummate the marriage. This is called physical incapacity. In other words if one of them is unable to have sexual relations with the other there is incapacity. This action can be initiated by the person married to the incapable spouse or the incapacitated spouse if that spouse was not aware of the their inability at the time of the marriage or they did not know the inability could not be cured. The incapacity must still be in existence and not curable when the case begins. There is a five year statute of limitations from the date of the marriage to bring an annulment on these grounds.
Marriages by duress or where someone entered into it by force can also be annulled by the victim spouse. If one of the spouse’s was fraudulently induced into the marriage they can proceed with an annulment if they start it within the time as dictated by the statute of limitation for fraud cases. If the parties voluntarily lived together as husband and wife, after the discovery of the fraud, or after the marriage by duress, the marriage cannot be annulled. Parents, guardians, or relatives can start the action on behalf of the victim under these grounds as well.
The final reason listed in the statute for annulments is if one of the parties has a mental illness that cannot be cured for at least 5 years. Either the husband or wife can proceed under these grounds. Sometimes matrimonial cases are initiated and grounds are pled in the alternative, such as for an annulment or a divorce. Feel free to click around our blog,website or call for more information about any matrimonial or family law topics or call us to discuss. The initial consultation is free. We look forward to hearing from you.
You can obtain an annulment based on one of the five reasons set forth in New York Domestic Relations Law (“DRL”) Section 140. This post will focus on an annulment based on fraud-DRL 140(e). Pursuant to this statute:
An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force or duress may be maintained at any time by the party whose consent was so obtained. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained within the limitations of time for enforcing a civil remedy of the civil practice law and rules. Any such action may also be maintained during the lifetime of the other party by the parent, or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage, provided that in an action to annul a marriage on the ground of fraud the limitation prescribed in the civil practice law and rules has not run. But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.
As provided for in the above statute and New York case law, a plaintiff seeking an annulment based on fraud must show that: (1) the action was brought within three years of discovering the fraud; (2) the fraud would have deceived an ordinarily prudent person, and (3) that the consent was given due to the fraud. The most common fraudulent acts include, but are not limited to, marriage for a green card; falsely claiming the desire to have children; falsely claiming to love the other spouse; and falsely claiming to be pregnant. Since marriage is a social contract, both parties must knowingly consent to the marriage of their own free will.
There are two different types of marriage annulments, a civil annulment and a religious annulment. Courts issue civil annulments. A civil annulment may not be required to obtain a religious annulment. If you were married in a religious ceremony, you should consult with your clergymen concerning the requirements of obtaining a religious annulment.
Many people misunderstand civil annulments. In New York, there is no practical difference between an annulment and a divorce. Both end a marriage. Many people mistakenly think that, when a marriage is annulled, the marriage records are destroyed. Just as in a divorce, the marriage records remain on file. Another misconception is that an annulment can be obtained solely based upon being married for a short amount of time. This is not true. Once parties marry, they are married. The law does not provide for a trial marriage. Many people think that an annulment is simpler than a divorce. This also is not true. An annulment is actually a bit more complicated than a divorce and, as a result, generally costs more to obtain.
The legal action to declare a marriage annulled is brought in the Supreme Court of New York. In New York, the Supreme Court is not the highest court or even an appellate court. It is the court of general jurisdiction.
There are two different types of marriages that can be annulled, void marriages and voidable marriages. A void marriage is void at its inception and, as a result, can never be made legal. Examples of void marriages include a marriage between an ancestor and a descendant, such as between a parent and a child; a marriage between an uncle and his niece or an aunt and her nephew. Other examples of void marriages include: a marriage between siblings; a marriage with a person who is already married, whose marriage was not terminated or dissolved, and whose spouse is still alive; and a marriage performed by someone who did not have the legal authority to perform the marriage. In New York cousins may legally marry.
Although a void marriage is not recognized as valid, such a marriage cannot be legally terminated without obtaining a declaration of a nullity of the marriage. In addition to the declaration, the court can also legitimize children of the marriage and address all issues of the marriage, such as custody of the children, child support, maintenance and equitable distribution of marital assets. There is no time limit on bringing an annulment for a void marriage. The action may be brought anytime during the life of the parties.
Voidable marriages are marriages that, although legal at inception, can be annulled if any of the following conditions are met:
- Either spouse was incurably unable to have sexual intercourse at the time of the marriage. The action must be brought within 5 years and the party bringing the action must have had no prior knowledge.
- After marriage, either partner becomes incurably insane for five years or more. The annulment must be brought within 6 years. The court may include in such an annulment judgment a provision that provides suitable support, care and maintenance of the disabled spouse for life payable from the property or income of the non-disabled spouse;
- A marriage involving a person younger than 18 may be annulled at the discretion of the court, if the spouse who is under 18 wants an annulment. The annulment will not be granted if the minor cohabited freely with the other party after reaching the age of 18. The annulment must be brought within in 6 years;
- Either spouse was unable to understand the nature, effect and consequences of the contract of marriage because of mental incapacity (mental illness or mental retardation). The annulment must be brought within 6 years;
- Either spouse consented to marry as a result of force or duress by the other. The annulment must be brought within 6 years; or
- Consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other spouse’s consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. The annulment must be brought within 3 years of learning of the fraud.
A legal action is also required to annul a voidable marriage. Only the spouse not at fault may commence the action to annul. An annulment requires a higher degree of proof than a divorce. Often, corroborative evidence from other witnesses is required to establish the proper grounds. Strict time limits apply to commencing the annulment action. Each of the above reasons for an annulment may also contain further restrictions.
The vast majority of annulments are based upon fraud. Fraudulent acts that warrant an annulment include marriage for a green card; falsely claiming the desire to have children; falsely claiming to love the other spouse; and falsely claiming to be pregnant. Proving an annulment case will require an affidavit from a witness, who heard the spouse make a statement prior to marriage that was false, and then, after the marriage, heard the spouse admit that the false statement made prior to the marriage was made to induce the innocent spouse to marry.
The cost of a simple annulment on consent is $1,998 (our fee is $1,655 and the court fees are $343).
Call us at (718) 625-0800 to schedule a free consultation.
We offer thousands of annulment forms. Some of the forms offered are listed by area below. For others, please use our search engine.
New York Annulment Forms FAQ Annulment In New York
What is an annulment? An annulment is legal decree that states that a marriage was never valid. The legal effect of an annulment is to void the marriage as though it never existed. Generally, the length of time married is not a determining factor to request an annulment. Mere regret alone is generally insufficient grounds for an annulment. Laws vary by jurisdiction, so local laws should be consulted for requirements in your area.
What is the difference between annulment and divorce? Annulment differs from divorce in that it addresses defects in a marital relationship occurring at the time of the formation of that relationship. Thus, if a marriage is illegally formed, when it is annulled the parties regain their legal rights and responsibilities as they existed before the marriage occurred. By contrast, a divorce deals with problems in a marital relationship arising after the marriage is formed. Traditionally, after a divorce the parties have continuing legal status as ex-spouses involving division of property, custody of children, and alimony.
Annulments are becoming similar to divorces in that with annulments courts may now divide marital property, order the payment of spousal support or alimony, or decree nearly anything that would be common upon a decree of divorce. Unlike with divorce, however, certain rights or entitlements such as worker’s compensation benefits or alimony from a previous marriage that may have ended upon marriage will be restarted upon annulment, because the decree legally makes the marriage nonexistent
What are the grounds for an annulment? Grounds for annulments and prohibited marriages are varied. Insanity, fraud, force, duress, impotency, being underage, and polygamy are all leading grounds for annulment. There are also a few more creative grounds. Colorado, for instance, has an annulment provision considering if the act were done as “Jest or Dare.” A couple of states will also make a marriage void or voidable if a party is found to have AIDS or venereal disease.
Gold Award 2006-2018
BEST Legal Forms Company
11 Year Winner in all Categories:
Forms, Features, Customer Service
and Ease of Use.
Find your Senator and share your views on important issues.
§ 140. Action for judgment declaring nullity of void marriages or
annulling voidable marriage. (a) Former husband or wife living. An
action to declare the nullity of a void marriage upon the ground that
the former husband or wife of one of the parties was living, the former
marriage being in force, may be maintained by either of the parties
during the life-time of the other, or by the former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the
ground that one or both of the parties had not attained the age of legal
consent may be maintained by the infant, or by either parent of the
infant, or by the guardian of the infant's person; or the court may
allow the action to be maintained by any person as the next friend of
the infant. But a marriage shall not be annulled under this subdivision
at the suit of a party who was of the age of legal consent when it was
contracted, or by a party who for any time after he or she attained that
age freely cohabited with the other party as husband or wife.
(c) Party a person with a developmental illness or person with a
mental illness. An action to annul a marriage on the ground that one of
the parties thereto was a person with a developmental disability may be
maintained at any time during the life-time of either party by any
relative of a person with a developmental disability, who has an
interest to avoid the marriage. An action to annul a marriage on the
ground that one of the parties thereto was a person with a mental
illness may be maintained at any time during the continuance of the
mental illness, or, after the death of the person with a mental illness
in that condition, and during the life of the other party to the
marriage, by any relative of the person with a mental illness who has an
interest to avoid the marriage. Such an action may also be maintained by
the person with a mental illness at any time after restoration to a
sound mind; but in that case, the marriage should not be annulled if it
appears that the parties freely cohabited as husband and wife after the
person with a mental illness was restored to a sound mind. Where one of
the parties to a marriage was a person with a mental illness at the time
of the marriage, an action may also be maintained by the other party at
any time during the continuance of the mental illness, provided the
plaintiff did not know of the mental illness at the time of the
marriage. Where no relative of the person with a developmental
disability or person with a mental illness brings an action to annul the
marriage and the person with a mental illness is not restored to sound
mind, the court may allow an action for that purpose to be maintained at
any time during the life-time of both the parties to the marriage, by
any person as the next friend of the person with a mental illness or
person with a developmental disability.
(d) Physical incapacity. An action to annul a marriage on the ground
that one of the parties was physically incapable of entering into the
marriage state may be maintained by the injured party against the party
whose incapacity is alleged; or such an action may be maintained by the
party who was incapable against the other party, provided the incapable
party was unaware of the incapacity at the time of marriage, or if aware
of such incapacity, did not know it was incurable. Such an action can be
maintained only where an incapacity continues and is incurable, and must
be commenced before five years have expired since the marriage.
(e) Consent by force, duress or fraud. An action to annul a marriage
on the ground that the consent of one of the parties thereto was
obtained by force or duress may be maintained at any time by the party
whose consent was so obtained. An action to annul a marriage on the
ground that the consent of one of the parties thereto was obtained by
fraud may be maintained by the party whose consent was so obtained
within the limitations of time for enforcing a civil remedy of the civil
practice law and rules. Any such action may also be maintained during
the life-time of the other party by the parent, or the guardian of the
person of the party whose consent was so obtained, or by any relative of
that party who has an interest to avoid the marriage, provided that in
an action to annul a marriage on the ground of fraud the limitation
prescribed in the civil practice law and rules has not run. But a
marriage shall not be annulled on the ground of force or duress if it
appears that, at any time before the commencement of the action, the
parties thereto voluntarily cohabited as husband and wife; or on the
ground of fraud, if it appears that, at any time before the commencement
thereof, the parties voluntarily cohabited as husband and wife, with a
full knowledge of the facts constituting the fraud.
(f) Incurable mental illness for five years. An action to annul a
marriage upon the ground that one of the parties has been incurably
mentally ill for a period of five years or more may be maintained by or
on behalf of either of the parties to such marriage.
Annulment isn't necessarily the fastest way to end a marriage, but if you meet the criteria, it may be your best route to singledom.
by Ronna L. DeLoe, Esq.
updated August 24, 2020 · 3 min read
A common misconception is that if you want to get divorced, you have the choice to have your marriage annulled instead. This is not true in most cases, even if you’ve only been married for a little while.
In fact, when it comes to annulment versus divorce, divorce is easier because all states have no-fault divorce. Grounds for annulment are quite specific, and you must prove them if you want your marriage annulled.
Annulment Versus Divorce
When a marriage is annulled, it’s as if you were never married. The marriage ends as if it never existed and, in some states, property is not divided. If there are children of the marriage and significant property, your state may require division of property and a custody determination. You’ll want to check to see if your state requires this.
If you’re making more money than your spouse, you may want an annulment because there’s usually no alimony in an annulled marriage. Your spouse, however, could be awarded temporary alimony during the annulment process.
If you’d rather not say you’re divorced, which is a stigma in certain religions, you may want to get your marriage annulled. You still, however, must have grounds for annulment. Luckily, even if you get an annulment, any children of the marriage are still legitimate, and your children’s father is still the legal father.
What Are the Grounds for Annulment?
To have a marriage annulled, you’ll have to prove one of the grounds for annulment. If none of these grounds exist, then you can’t have the marriage annulled. The annulment requirements in most states mean you must show one of the following:
- The spouse seeking the annulment must have relied on this fraud or misrepresentation at the time of the marriage.
- A spouse couldn’t consent to the marriage because of mental incapacity, use of drugs, or use of alcohol.
- A spouse cannot consummate the marriage, such as being unable or refusing to have intercourse, and the other spouse was unaware of this.
- A spouse was under the age of consent and didn’t have permission from parents, guardians, or a court to get married.
- A spouse was coerced to marry by force or by threat of force.
- The marriage occurred as the result of a joke or a dare.
- The marriage is void due to bigamy or polygamy.
- The marriage is void due to incest.
- Concealment of major issues, including substance abuse, a felony, children from a prior relationship, a mental health issue, and sexually transmitted disease.
Is There a Statute of Limitations for Getting an Annulled Marriage?
In some states, a marriage annulment timeframe doesn’t exist. You can file for annulment at any time in these states, although the sooner you file, the better. Other states, however, have specific time limits. For example, Colorado requires you to file for annulment within six months after you discover duress, fraud, a dare, mental illness, substance abuse, or alcohol abuse.
Additionally, spouses in Colorado must seek annulment within one year of discovering the other spouse is sexually unable to consummate the marriage. Underage spouses have two years to get an annulled marriage in Colorado.
What Is the Cost of Annulment?
The marriage annulment cost is often less than a divorce unless your spouse contests the annulment. If so, like a divorce, the cost will increase because there will be additional court appearances. Costs are always changing, as are filing fees, but you can often get your marriage annulled for a few hundred to a few thousand dollars.
Do You Need to Have a Hearing to Get an Annulled Marriage?
In some states, if your spouse agrees to an annulment, you may not have to go to court. An annulment in California, however, usually requires a hearing. Check with your county clerk to see if your state requires a hearing.
Annulment (sometimes known as ‘nullity’) is a different way of ending a marriage.
Unlike divorce, you can apply for annulment in the first year of your marriage or any time after. However, if you apply years after the wedding, you might be asked to explain the delay.
You’ll need to show that the marriage:
- was never legally valid (‘void’)
- was legally valid, but meets one of the reasons that makes it ‘voidable’
Your marriage is not legally valid – ‘void’ marriages
You can annul a marriage if it was not legally valid in the first place, for example:
- you’re closely related to the person you married
- one or both of you were under 16
- one of you was already married or in a civil partnership
If a marriage was never legally valid, the law says that it never existed.
However, you may need legal paperwork (a ‘decree of nullity’ or ‘nullity of marriage order’) to prove this – for example if you want to get married again.
Your marriage is ‘voidable’
You can annul a marriage for a number of reasons, such as:
- it was not consummated – you have not had sexual intercourse with the person you married since the wedding (does not apply for same sex couples)
- you did not properly consent to the marriage – for example you were forced into it
- the other person had a sexually transmitted disease (STD ) when you got married
- your spouse was pregnant by someone else when you got married
- one spouse is in the process of transitioning to a different gender
As with divorce, your marriage legally exists until you annul it using one of these reasons.
The rules on ending a civil partnership are slightly different, but the court forms are the same.
Information Provided by: Robert E. Nowak , Esq.
This article is a brief overview of the law in New York concerning invalid marriages. As with any court proceeding a matrimonial attorney should always be consulted. This article is not intended to be any form of legal advice and is not to be relied upon as such.
There are some marriages that are entered into in New York that are void from their inception, that is, they are not recognized as a valid marriage and can never ripen into a valid marriage regardless of their length. These marriages are called void marriages.
Marriages entered into between two parties that are related within the prohibited degrees of consanguinity are void. Section 5 of the Domestic Relations Law provides that marriages are void if entered into between (1) an ancestor and descendant; brothers and sisters of the whole or half blood; an uncle and a niece or an aunt and a nephew. These marriages are called incestuous. You will notice that, contrary to popular belief, there is no prohibition against marriages between cousins.
Section 6 of the Domestic Relations Law provides that a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is still living unless such marriage has been annulled or dissolved. These marriages are called bigamous.
To officially terminate these marriage one commences an action entitled “Action To Declare The Nullity of a Void Marriage”.
Marriages that are void from the time its nullity is declared by a court of competent jurisdiction are called voidable marriages and it is these marriages that can be annulled.
Section 7 of the Domestic Relations Law provides: if either party thereto:
In some cases couples who divorce will ask the church of their particular faith to grant an annulment of their previous marriage. Whether or not to grant such a request is always at the discretion of the church and is purely a matter of the ecclesiastic law of that particular faith and, as such, cannot be ordered by a civil court. There are, however, secular matters that must be satisfied before a church annulment should even be considered.
Fist of all, a church annulment cannot serve as a divorce. A divorce is a civil matter that is subject to the laws of the state where the couple resides at the time the divorce petition is filed. If there has been no legally finalized divorce or annulment then, in the eyes of the law, any subsequent marriage by either party would be considered bigamy and thus an invalid marriage.
A civil divorce or a civil annulment is also necessary to settle matters such as the division of marital property and, more importantly, to decide which parent will be given the responsibility of child custody and which parent will be responsible for the payment of child support and/or spousal support (alimony). Although a church or other religious body may have teachings regarding these matters, a church edict is not enforceable by a civil court or by any law enforcement agency.
Annulment in the Roman and Orthodox Churches
“Annulment” in the Roman Church and “Ecclesiastic Divorce” in the Eastern Church are similar to each other except for the finer points of their interpretations of scripture. Once past these theological issues the procedures are basically the same. A church tribunal (court) will convene and the spouse requesting the annulment will present their case regarding why the annulment should be granted. The other spouse may or may not be present and may not have been notified of the proceedings. In either case, the tribunal will consider the evidence presented in the light of church law and, if there is no problem with church doctrine, issue the requested annulment.
Annulment in the Protestant Churches
As a general rule, most Protestant churches do not issue annulments and accept the actions of the civil courts as the final word on a marriage and see no reason that either party should be prohibited from remarrying. If permitted by the civil law of a particular jurisdiction, and if a legally valid reason exists, an annulment may be preferable to a divorce in some religious communities.
Annulment in the Mormon (Latter Day Saints) Church
The LDS Church discourages divorce but will accept it after the couple goes through “counseling” by a local Church leader but are unable to reconcile. There is a doctrine that is unique to the LDS Church that is referred to as an “unsealing” of a marriage that was “sealed” for eternity in a Mormon Temple. Interestingly, only the woman is required to have been “unsealed” before remarrying.
Annulment in Islam
According to Islamic law, a husband may divorce his spouse whenever he wishes and without having to justify his decision to divorce, a practice that is not permitted to women. A woman can, but only in certain circumstances, ask a religious court to annul her marriage. Whether this request is granted is largely dependent on the particular beliefs of the Islamic community in which the annulment request is made.
Unless obtained through a civil proceeding, an annulment is not the same as a legal divorce in the eyes of the secular authorities. Annulments issued through church courts or similar ecclesiastic bodies have no authority outside the body of the church issuing the annulment decree and are not an alternative to divorce.
Most spouses who want to end their marriages need to go through the divorce process, but some spouses will qualify for “annulment.” When a spouse annuls his or her marriage, it means that the marriage was never a legal marital union in the first place.
There are many reasons why a New York family law judge might agree to annul a marriage. If you qualify for annulment under one of the reasons, the process could be a simpler, less expensive and faster way to dissolve your marriage.
When can spouses get an annulment?
Here are the most common reasons why spouses seek a marriage annulment:
Fraud/misrepresentation: When a spouse lied about important issues relating to the marriage, the other spouse could seek to annul the union. For example, grounds for annulment might include a spouse lying about his or her age, fertility status or concealing the fact that he or she was already married.
Concealment of a serious “deal-breaker:” A judge might annul a marriage if one of the spouses concealed vital information that would have caused the other spouse to reconsider getting married. For example, a spouse might conceal the fact that he or she had an addiction, a previous felony conviction, spent time in jail, was involved in a gang, was committing crimes, suffered from a sexually transmitted disease or other important information.
A refusal or inability to consummate the marriage: Marriage is usually based on the fact that the spouses will engage in sexual relations. If one spouse refuses to “consummate” the marriage sexually, the other spouse could request an annulment.
A serious misunderstanding: Spouses might not understand their true intentions for getting married. In some cases, questions about having children could make or break a marriage. If one spouse wants to have children and the other does not — but they never adequately discussed the issue — later revelations on this topic could result in grounds for annulment.
Can you seek the annulment of your marriage?
If you can annul your marriage as opposed to getting a divorce, it could be a benefit to you or a problem financially. Therefore, before you choose to annul your marriage, you might want to explore the various options you have under New York law to bring your marriage to a close.
In the state of New York, a maintenance order, otherwise known as alimony, is based on a spouse’s duty to support the other after divorce when dependency has been established. . Click here to get more info on Alimony
New York | Child Support Law Summary
What Steps are Taken Once Child Support is Declared?
New York | Custody Law Summary
What Happens if Domestic Abuse is Filed in a Custody Case?
If either party claims evidence of domestic abuse, the court must consider the effect of domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a decision.
When Would the Court Need Verification?
In any action or proceeding brought:
The court will require verification of the status with respect to the child’s custody, including any prior orders, and shall ente . Click here to get more info on Custody
New York | Divorce Law Summary
What are the Requirements for Divorce?
To get a divorce in the state of New York, the first thing that must be met is the residency. For this state, a spouse must be a resident or stationed through the U.S. Military for two years before it can be filed with the county courthouse.
Recently, New York added a no-fault option in 2010 which requires them to be separated for one or more years before filing.
What are Reasons for a Fault Divorce?
The state recognizes the following reasons for a fault divorce:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physi . Click here to get more info on Divorce
New York | Visitation Law Summary
How is Visitation Requested?
New York law states that a biological parent of a minor child may request visitation rights as part of an open divorce, parentage or custody case or may file a petition for visitation in none of these circumstances apply.
The court will decide a request for visitation based on whether granting a parent visitation would be in the “best interests of the child.”
How are the Child’s Best Interests Determined?
What is considered in a child’s “best interests” are outlined under the custody and visitation statute which indicate the following factors are relevant to this type of decision:
New York | Property Division Law Summary
How is Property Distributed?
Under New York law, marital property is that which is acquired or is a direct result of the labor and investments of the parties during the marriage is subject to equitable division. Equitable division does not mean marital property is divided equally, it is divided in manner that results in a fair or equitable result for each spouse.
Courts will consider the following factors:
- each spouse’s share of the marital property
- the economic circumstances of each spouse
- the conduct of each spouse
- the value of the marital property and wheth . Click here to get more info on Property Division
MaritalLaws is a free public resource site, and is not affiliated with the United States government or any Government agency
Annulment or Divorce?
If you have reached the end, and don’t know which way to turn, you might be contemplating a divorce. But wait, is it a divorce you are looking for or can you obtain an annulment? Or should you go for an annulment instead of a divorce?
There has been interest recently in what constitutes adultery for a divorce, and particularly between same sex couples. What the reports usually fail to point out is that there is only one ground for divorce, that of irretrievable breakdown of marriage. It is established by reference to one of five facts – adultery, unreasonable behaviour, two years desertion, two years separation with consent or five years separation. Adultery as a fact is only available to heterosexual spouses, the legal definition of adultery requiring sexual intercourse between a man and a woman.
What is Annulment and why would I want one?
To annul a marriage is to decree that it is null and void. Annulment can be made where the court decides that a marriage is invalid. In contrast to a divorce, where a marriage is annulled, it is treated as though it never existed. However, the end result is that the parties are each then free to marry another person.
Can I claim financial relief on annulment of marriage?
Yes, the court has power to determine financial claims for capital, pension and maintenance in the same way as if the couple were divorcing. The court will also determine arrangements for the children if needed.
When can you annul a marriage?
Annulment is a way of ending a marriage, like divorce. Unlike divorce, you can get a marriage annulled at any time after the wedding (in a divorce, you have to wait at least a year). You may want an annulment if you have religious reasons for not wanting a divorce. However, you need to show that the marriage was either not valid in the first place, or is defective for one of the reasons given below.
You can annul a marriage if it was not legally valid in the first place, for example
•you are closely related
•one of you was under 16
•one of you was already married or in a civil partnership
You can annul a marriage if:
• it wasn’t consummated – you haven’t had sex with the person you married since the wedding. Although note that this does not apply for same sex couples.
• you didn’t properly consent to the marriage
• the other person had a sexually transmitted disease when you got married
• the woman was pregnant by another man when you got married
Marriages annulled for these reasons are known as ‘voidable’ marriages. Note that the rules on ending a civil partnership are slightly different.
How do I get an Annulment?
An annulment can be applied for at any time after the wedding. You do not need to wait 12 months as in the case of a divorce. To start proceedings you must file a nullity petition and pay the court fee (currently £410). If your spouse agrees (and they must respond within 8 days) then you can apply for a decree nisi. You must do so with a statement setting out the truth of your nullity petition. In the same way as with divorce, you must wait 6 weeks and a day before applying for decree absolute – the ‘decree of nullity’.
Do I have to go to Court?
This is where the procedure differs substantially from divorce. In divorce proceedings, there is a ‘special procedure’ where the court can deal with matters on paper alone. However, where you are applying for nullity, the court will require you to attend in open court for a hearing. The court will need to be satisfied as to the basis of the annulment and require personal affirmation.
I have a Will – is it affected?
In the same way as with divorce, any references to your spouse in a will lapse on annulment. It is always worth reviewing your existing Will or even making a Will on separation and in contemplation of divorce or annulment so that you can provide for your loved ones rather than rely on the intestacy rules.
It is not for everyone
The grounds for seeking an annulment are quite limited. They are not for everyone. Often it is suitable because of religious beliefs or as a result of rather limited circumstances in which the marriage came to be ‘celebrated’. If you think you might satisfy the criteria and want to seek annulment then it is wise to seek specialist family law advice to check your position. It is also important to consider the most appropriate forms of financial support and the options available to you in relation to any children of the relationship. A qualified family lawyer will be able to give you the best advice on these areas.
If any of the issues raised in this post affect you or someone close to you and you would like to discuss your options please do not hesitate to contact us at Paradigm Family Law on 0845 6020422 or email us at: [email protected]. Our family law experts, James Thornton and Frank Arndt are here to help. We offer fixed fees and a free initial consultation.
Child Arrangements Orders – what you need to know
There are two ways to bring a marriage to a legal end in England and Wales: divorce and annulment. I have written extensively about divorce on this blog in the past, so now let’s look at annulment.
My thoughts turned to annulment during my latest appearance on Radio Verulam in St Albans, where I have a monthly question and answer spot for family law questions from listeners.
Today, one such listener explained that she had recently married her boyfriend only to discover that the name on his passport was completely different from the one she knew. This shocking revelation happened when the couple were returning from their honeymoon, only three weeks after they married. “Who have I married?” she asked “What can I do?”
In my experience, there are no good reasons for travelling on a false passport, (which is an offence) if indeed it was a false passport. Perhaps it wasn’t. Perhaps it is real and she had unwittingly taken part in a sham marriage with the marriage information being fake. Perhaps he is a bigamist or trying to stay in the country via a sham marriage. Or for all she knows, his identity as known to her and his identity on the passport could both be fake. We live in dangerous times.
The lady herself wasn’t on the line, but no matter how you look at it, the omens aren’t good. The criminal implications are substantial and I suggested that if she was concerned and couldn’t get an acceptable explanation, she should contact the police. She doesn’t want to be caught up in a crime and they have extensive power to do background and identity checks that she does not.
If she wanted to simply divorce him, she would have to wait for a full year before she could begin proceedings. Annulment, however, is available at any time after the wedding and it’s the way for her to go legally, if she wants out.
Annulment has a different set of criteria from divorce. It is not good enough to simply say that the marriage has broken down. People who want their marriage annulled must show that it was not valid in the first place or it was “defective” (voidable).
In the case of a void marriage there has never been a valid marriage at all, because there was no capacity by one or both parties to enter into such a marriage, as defined by Section 11 of the Matrimonial Causes Act 1973.
Examples of this would be if a couple is too closely related; or under the age of 16 when they married; or one of them was either already married or in a civil partnership.
A voidable marriage is also capable of annulment. Under Section 12 Matrimonial Causes Act 1973 a party must demonstrate that the marriage is “defective” or “voidable” – for example their marriage has never been “consummated” – although this option is not available to same sex couples. If one party had a sexually transmitted disease they did not disclose or if the wife was pregnant with another man’s child the marriage can also be annulled.
A lack of informed consent is another way to annul a marriage. Perhaps one party was forced into it or they were drunk at the time. Or, like in this very unusual case, one party has misrepresented who they are. How can one person have properly consented if they did not know who they were really marrying?
If any of those circumstances apply, a party can issue a “nullity petition”, which is available on the Ministry of Justice’s website. Then they need to file that petition with their nearest divorce court. The entire process costs £550 – the same as the current fee for a divorce.
Interestingly, financial remedies open to divorcing couples are also available to those who obtain an annulment. This can be particularly necessary if the female is pregnant or has children.
Compare and contrast a void or voidable marriage with a ‘non-marriage’ where parties have gone through a ‘marriage’ ceremony that cannot reasonably be considered a marriage when viewed objectively. In those circumstances, no annulment at all is required and no financial remedies are available even if a child has been born.
With the advent of many more foreign nationals setting up home in England there are a growing number of cases where the court has to decide what constitutes a marriage – because a financial settlement depends on it. One spectacular case dragging its way through the court in London which has been reported extensively involves an extremely wealthy billionaire who went through an Islamic marriage ceremony in London but whose ‘marriage’ was eventually declared a ‘non-marriage’ after a substantial inquisition by the court. A child had been born and as a result of the Court’s decision, that ‘wife’ was entitled to nothing and the child was limited to claims under Schedule 1 Children Act 1989 only.
Annulments are still comparatively rare, and in these extreme cases they can be the best way to get out of a bad marriage fast while retaining all the financial claims available for divorce.
The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.
Obtaining an annulment of your marriage means a judge has declared that your marriage was not valid from the start. It is extremely rare. Most marriages in Ontario end in a divorce.
You may be able to obtain an annulment if you did not have the capacity to marry such as being married already to someone else, being so intoxicated you did not know what you were doing, being a minor, being forced into marriage by reason of fraud or duress, or lacking the mental capacity.
The more common reason for an annulment is if the marriage was not consummated. That means that you did not have sexual intercourse together after marriage. For example, if your new “spouse” is unable to have sexual intercourse and you did not know of their incapacity before marriage, you can seek an order that the marriage be annulled.
Marriages of convenience such as those entered into for immigration purposes will not be annulled simply because of the motive. You need to prove a lack of capacity to enter into the marriage or the fact that it was not consummated.
Although you may not be able to obtain an annulment through the court system in Ontario, you may be eligible for a religious annulment. You will need to consult with your religious leader regarding a religious annulment. Even if you obtain a religious annulment, it does not mean you will necessarily receive a civil one. You may have to obtain a divorce through the court system.
If you have circumstances where you think you might be able to obtain an annulment, start the process by contacting our office and having a consultation with one of our lawyers. We can help you determine whether an annulment is possible or if you have to use the more traditional process of obtaining a divorce.
Welcome to FindLaw’s New York Family Laws section, with useful and constantly updated information about such topics as marriage, divorce, adoption, child support, and child custody. Many of New York’s laws are similar to those of other states, with some minor differences. For example, New York was one of the first states to pass a stalking law. New York also allows same-sex couples to get married. There are so many different areas of family law that can come into play, including: child abuse, annulment, domestic abuse, abortion, and protective orders. Click on a topic below to learn more about New York statutes.
Get Expert Help From a New York Family Law Attorney
Like the late, great Frank Sinatra, New York tends to do things "my way." It’s laws and, in particular, it’s family laws are no different. Whether you’re looking to adopt or to divide up marital assets, you need to have someone by your side who understands the legal system in New York. Speak with an experienced family law attorney today.
Learn About New York Family Laws
New York Adoption Laws
Adoption law basics under New York law, such as who may be adopted; the age of consent for adoption; home residency requirements; and links to related adoption articles and resources.
New York Stalking Laws
The Empire State’s stalking statute is not exclusively for celebrities. Click here for the definition of stalking, whether it is a misdemeanor or felony, and the penalty for repeat offenses.
New York Protective Order Laws
New York law related to protective orders (commonly called "restraining orders") often sought by victims of domestic violence or those who are threatened or stalked by former spouses.
New York Child Custody Laws
The basics of New York child custody laws and regulations, including information on whether joint custody is offered; the availability of grandparents’ visitation rights; and links to additional relevant information about custody.
New York Prohibited Marriage Laws
Basics of what you need to know to annul a marriage in New York, with time limits for obtaining an annulment, grounds for an annulment and legitimacy of children; and other prohibited marriage laws.
New York Abortion Laws
How New York law regulates abortion within the state, including the statutory definitions of both legal and illegal abortions; the penalty for unlawful abortions; and consent requirements prior to the procedure.
(a) Former husband or wife living. An action to declare the nullity of a void marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the ground that one or both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant’s person; or the court may allow the action to be maintained by any person as the next friend of the infant. But a marriage shall not be annulled under this subdivision at the suit of a party who was of the age of legal consent when it was contracted, or by a party who for any time after he or she attained that age freely cohabited with the other party as husband or wife.
(c) Party a mentally retarded person or mentally ill person. An action to annul a marriage on the ground that one of the parties thereto was a mentally retarded person may be maintained at any time during the life-time of either party by any relative of a mentally retarded person, who has an interest to avoid the marriage. An action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage. Such an action may also be maintained by the mentally ill person at any time after restoration to a sound mind; but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and wife after the mentally ill person was restored to a sound mind. Where one of the parties to a marriage was a mentally ill person at the time of the marriage, an action may also be maintained by the other party at any time during the continuance of the mental illness, provided the plaintiff did not know of the mental illness at the time of the marriage. Where no relative of the mentally retarded person or mentally ill person brings an action to annul the marriage and the mentally ill person is not restored to sound mind, the court may allow an action for that purpose to be maintained at any time during the life-time of both the parties to the marriage, by any person as the next friend of the mentally retarded person or mentally ill person.
(d) Physical incapacity. An action to annul a marriage on the ground that one of the parties was physically incapable of entering into the marriage state may be maintained by the injured party against the party whose incapacity is alleged; or such an action may be maintained by the party who was incapable against the other party, provided the incapable party was unaware of the incapacity at the time of marriage, or if aware of such incapacity, did not know it was incurable. Such an action can be maintained only where an incapacity continues and is incurable, and must be commenced before five years have expired since the marriage.
(e) Consent by force, duress or fraud. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force or duress may be maintained at any time by the party whose consent was so obtained. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained within the limitations of time for enforcing a civil remedy of the civil practice law and rules. Any such action may also be maintained during the life-time of the other party by the parent, or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage, provided that in an action to annul a marriage on the ground of fraud the limitation prescribed in the civil practice law and rules has not run. But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.
(f) Incurable mental illness for five years. An action to annul a marriage upon the ground that one of the parties has been incurably mentally ill for a period of five years or more may be maintained by or on behalf of either of the parties to such marriage.