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.