Annulment or Nullity of Marriage – Introduction – California Family Code Section 2200

There are two ways in which to legally terminate a marriage: divorce or an annulment. Whereas a divorce (or a judgment of dissolution of marriage) is used to terminate a validly recognized marriage, an annulment (or a judgment of nullity of marriage) is a legal procedure that is used to declare that a valid marriage never legally existed.

Therefore, people generally seek an annulment, sometimes referred to as a “nullity,” in situations where they wish to be restored to the status of “unmarried persons” (Family Code Section 2212). A marriage can be nullified if it is shown to be illegal from the start (e.g., incest, bigamy, fraud or threat of force, underaged marriage, etc.) or if it somehow deviated from the requirements of state law during its formation. A divorce, on the other hand, seeks to terminate a marriage based on grounds that arise only after the marriage has been established.

California law defines “marriage” as a “personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary” (Family Code Section 300). However, the parties’ consent alone does not constitute a marriage. To obtain a marriage that is recognized in California, the parties must:

• Obtain a marriage license from the county clerk (Family Code Section 350 et seq.),
• Solemnize the marriage through a priest, minister, rabbi, or judicial officer who is at least 18 years of age (Family Code Section 400 et seq.),
• Have the person who solemnized the marriage authenticate it on the marriage certificate and return that certificate to the county recorder with 10 days after the ceremony  (Family Code Sections 422-425).

Any illegality or defects in the legal formation of a marriage can work to render the marriage either “void” or “voidable,” which respectively has the effect of either nullifying the marriage from its inception or making the marriage susceptible to an annulment. Whether a marriage is deemed void or voidable offers parties different rights and may also entail different procedural guidelines.

If you believe that you have entered into a marriage that may be subject to an annulment, it is advisable that you contact a Wallin & Klarich family law attorney. Our attorneys have over 30 years of experience in diligently representing clients in their annulment proceedings. Call us today at 888-749-7428 or visit us online at www.wkfamilylaw.com. We will be there for you when you call.

Annulment or Nullity of Marriage – FAQs

1. Do annulments also apply to domestic partnerships?

Yes. The same rules and procedures also apply to domestic partnerships in California. A domestic partnership can exist between same sex couples or senior couples having reached 62 years of age. A properly registered and valid domestic partnership will entitle the parties to the same right, protections, and benefits as married spouses.

1. Is it better to seek an annulment if I have been married for a short time?

Yes. A large majority of annulments are granted to marriages that have lasted a few weeks or months. Given this short period of time, it is often easier to divide the assets and there will typically not yet be any children to complicate matters with issues of custody, support, or visitation rights.

1. Can an annulment be granted based on “irreconcilable differences” like in a divorce proceeding?

No. An annulment requires specifically stated reasons based on actual conditions or circumstances that would render the marriage void or voidable.

1. Does the length of the marriage determine whether or not I can get an annulment?

No. Although an annulment may be more complicated for longer marriages, it does not affect a party’s ability to seek an annulment.

1. What is an example of fraud that can render a marriage voidable?

A marriage can be voidable if a party entered into the marriage for the sole purpose of obtaining a green card to remain in the United States and never intended to engage in sexual relations or assume other marital duties.

A marriage is also voidable if a party is knowingly sterile and unable to procreate, but conceals this fact from the other party when they entered into marriage.

1. Can I seek an annulment if my spouse had concealed certain character traits from me before we married?

No. The concealment of “unattractive” traits such as unchastity, temper, idleness, extravagance, coldness or inadequate finances cannot be the basis for an annulment. Therefore, you cannot file for a judgment of nullity, for example, if you discover that your spouse is not actually a virgin or that he/she is not as wealthy as they may have led you to believe.

Annulment or Nullity of Marriage – Void Marriages – California Family Code Sections 2200 & 2201

A marriage that is declared void is deemed invalid from the beginning. This basically means that a marriage never legally occurred as far as California law is concerned (Family Code Section 2200).

A marriage may be declared void on the grounds of:

• Incest: This includes marriages between parent and child, ancestors and decedents of every degree, between brothers and sisters (including half-siblings), between uncles and nieces and aunts and nephews (Family Code Section 2200).
• Bigamy: Any subsequent marriage is void from the start if either party has a living spouse and did not properly dissolve or nullify that marriage before attempting to re-marry (Family Code Section 2201).
• Failure to Comply with State Licensing Requirements: A marriage can be rendered void if the parties fail to satisfy any of the requirements needed for a valid marriage in California (Family Code Section 306).

Exception

There is, however, one exception that applies to nullity proceedings based on bigamy grounds. Sometimes, a subsequent marriage in which either party still has a living spouse from a prior marriage may be rendered merely voidable, which means that the subsequent marriage will be valid until a court declares it void (Family Code Section 2201). However, this only results in situations where the former spouse was:

• Missing,
• Not known by the party to be living for five consecutive years immediately preceding the subsequent marriage,
• Or presumed dead at the time of the marriage.

Annulment or Nullity of Marriage – Voidable Marriages – California Family Code Section 2210

A marriage that is deemed voidable will still be considered valid despite its defects until a court formally declares the marriage void (Family Code Section 2210). Over time, a voidable marriage can become valid (non-voidable) if a proceeding to annul a voidable marriage is not commenced within a certain period of time. Once a voidable marriage is made valid, the only way to terminate the marriage is through a normal divorce proceeding.

A marriage is voidable on the grounds of:

• The Minority of a Party: A marriage is subject to a nullity proceeding if a party was under the age of lawful consent and was without consent from either the minor’s parents or from a court at the time of the marriage. In California, the age of consent is 18 years. If the parties freely cohabitate as husband and wife after the minor has reached the age of consent, then the union will be recognized as a valid marriage (Family Code Section 2210(a)).
• Living Spouse from a Prior Marriage: Although in most cases bigamy will result in a void marriage, the exception to that rule, as described in the “Void Marriages” section, will render the subsequent marriage voidable.
• Fraud: Since a marriage requires consent by both parties, any consent that is fraudulently obtained will render the marriage voidable. However, the defrauded party can legitimize the marriage by freely cohabitating with the other as husband and wife while fully aware of the fraud (Family Code Section 2210(d)).
• Force: A marriage may be deemed voidable if a party was coerced into it by force or threat of force (Family Code Section 2210(e)). Again, the marriage can be ratified if the parties freely cohabitate with the other as husband and wife.
• Physical Incapacity: A marriage will be rendered voidable if either party was physically incapable of “entering into the marriage state,” and such incapacity appears to be incurable (Family Code Section 2210(f)). Essentially, if either party was physically incapable of sexual intercourse at the time of marriage, that marriage will be subject to an annulment.
• Mental Illness: If either party entered into marriage with an “unsound mind,” the resulting marriage could be rendered voidable (Family Code Section 2210(c)). If the party with the unsound mind continues to cohabitate with the other as husband and wife after becoming lucid, the marriage will remain valid.

Annulment or Nullity of Marriage – The Rights of the Parties after Judgment of Nullity – California Family Code Sections 760 & 2251

When a marriage is terminated through a nullity proceeding, the rights of the parties are different from the rights reserved for spouses following a divorce.
As a community property jurisdiction, California requires that all community property (property obtained by either spouse during the marriage) must be equally divided between the spouses when a valid marriage is dissolved. This means, for example, that all the community property assets of the marriage, including any real property, automobiles, and other investments, would be divided equally following dissolution of marriage.

However, this property right only applies to marriages ending in death or divorce. If a marriage is nullified, the parties have no right to equal distribution of the marital property at all. Other rights that may also be lost in an annulment are spousal support, succession or estate rights when a spouse dies, and legal rights regarding minor children from the relationship.

Exception

If a party to an invalid marriage honestly believed in the validity of the marriage – and had no reason to believe that any deficiencies existed – they may qualify as a “putative spouse” (Family Code Section 2251).

A putative spouse is entitled to the same property rights, support, and attorney fees as a spouse in a divorce proceeding (Family Code Sections 2251, 2254, 2255). However, the party’s “good faith” belief in the validity of the marriage must be based on their belief that the marriage complies with the statutory requirements.

When a party is deemed a putative spouse, they will be entitled to “quasi-marital property,” which is treated exactly like community property. This means that a putative spouse, much like a spouse in a divorce proceeding, will be entitled to half of the marital property upon the termination of the marriage through divorce, annulment, or legal separation. A putative spouse, however, may not have rights in the other spouse’s estate upon death; this is more of a probate law matter.

Whether a marriage is terminated through divorce or an annulment can greatly impact the division of martial assets.  It is very important that you seek the legal advice and expertise of a family law attorney who can help you determine whether an annulment is possible course of action for you. At Wallin & Klarich, our attorneys have been in practice for over 30 years and will put that experience to work in representing your interests in your annulment matter. Call us today at 888-749-7428 or visit us online at www.wkfamilylaw.com. We will be there for you when you call.