Sometimes a marriage may be annulled. An annulment, like a divorce, dissolves a marriage and legally restores spouses to being single. However, an annulment is not the same thing as a divorce. Divorce severs a legal marriage and it does so because of some defect occurring during the marriage. An annulment voids a marriage, as if it had never happened, and it does so in recognition of a defect prior to the marriage that made the legal union invalid.
Only two types of marriages qualify for annulment: void and voidable marriages. (California Family Code sections 2200, 2201, 2210, and 306)
A void marriage is an invalid marriage from its inception—a marriage that never became legal. There are three grounds that make a marriage void:
- Incest -- A marriage between parent and child, or ancestor and descendant of any degree, or brother and sister (of half or whole blood), uncle and niece, or aunt and nephew, is void from the beginning.
- Bigamy -- If either party to a marriage has a spouse still living and that fact is known to at least one of the spouses, the subsequent marriage is void.
- A Marriage Not Contracted in Accordance with the Laws of California -- If a marriage license is not purchased and timely filed, for instance, the marriage is void. Failure to comply with the laws and procedures of California makes the marriage void.
Any marriage under one of these three circumstances is already null and void--it has no legal standing.
A voidable marriage is a marriage that has legal standing; however, it may be nullified at the option of one of the marriage partners. Yet, a voidable marriage will not be nullified until and unless it is declared null and void by a judge. In other words, nullifying a voidable marriage requires affirmative steps on the part of one of the parties.
Six conditions make a marriage voidable:
- Underage -- If one of the parties to the marriage is under the lawful age of consent, which in California is 18 years of age, and that person did not obtain the required parental or court consent, the marriage is voidable.
- Prior Existing Marriage -- If one of the parties to the marriage had been married before, but the prior spouse had been absent or presumed dead for the five successive years immediately preceding the marriage, and if, after the second marriage, it is learned that the previous spouse is still living, the subsequent marriage is voidable.
- Unsound Mind -- If either party suffered from an "unsound mind" at the time of marriage, the marriage is voidable, unless after coming to reason the parties live together as husband and wife.
- Force -- If consent to the marriage was obtained by force, the marriage is voidable, unless the coerced party freely agrees to live as husband-and-wife after the marriage.
- Physical Incapacity -- If either party is physically incapable of consummating the marriage and that incapacity continues and appears incurable, the marriage is voidable.
- Fraud -- If either party's consent to the marriage was obtained by fraud, the marriage is voidable, unless the defrauded party, having learned all the facts constituting the fraud, freely agrees to live together as husband-and-wife.
There are statute of limitations and other restrictions that apply to annulments. Even so, if at least one of these conditions apply, Flavio Carvalho Law will help you consider an annulment.