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Termination of a Marriage - Annulment

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Termination of a Marriage - Annulment

Marriages do not always stand the test of time and couples often find themselves in courtrooms wishing to have their marriages terminated. Many go to court asking for a divorce, but some will request an annulment instead.

            A marriage annulment is when a court considers a marriage never to have legally existed. In this presentation, we will differentiate annulments from divorces, discuss when annulments are void or merely voidable, and examine misconceptions about annulments.

Annulment vs. Divorce

            While both divorces and annulments terminate marriages, they differ. In a divorce, both parties agree that a valid marriage exists, but that something went wrong during the marriage, such as irreconcilable differences, and now one or both parties want to end the marriage. In contrast, when a couple asks for an annulment, they claim that there is some reason the marriage should never have existed and they want to avoid the entire marriage.[1]

Void v. Voidable

            A court will grant an annulment if either the marriage is “void” or “voidable.” A marriage is void when there is something that makes it illegal and against public policy. This prevents the marriage from ever coming into legal existence. In contrast, a marriage is voidable when a court finds a condition, like fraud, to have existed when the couple married. It is possible to ratify a voidable marriage by staying married to the person after discovering that the condition exists. A court will consider the marriage valid and the person seeking the annulment must seek a divorce instead.[2]

Void Marriages

States differ in their approaches to void marriage, but most consider a marriage to be void when incest or bigamy exist. Most states treat marriages between parties related by blood to the second degree, or anyone closer in blood relation than first cousins, to be void. Some states make an exception and will recognize a marriage between two first cousins as valid after they reach a certain age, or if they are incapable of having children.[3]

States will also void a marriage when bigamy is involved. A person cannot have two or more wives or husbands. If a wife already has a husband, her second marriage will be void. Even if both parties know at the beginning of the marriage that one of them is still married, the marriage is still void because allowing it to continue goes against public policy.[4]

Voidable Marriages

            There are several grounds for a voidable marriage. At its core, a marriage is a contract between two people and the common defenses to contract formation are applicable here.

            Most states require that a child, usually a person under the age of 18, obtain parental consent before marrying. However, if the child manages to receive a marriage license without parental consent, the marriage is voidable when he becomes an adult.[5] To ratify the marriage, however, once he reaches adult age, he must not ratify the marriage, which can happen when he continues to act as his wife’s husband and live with her.[6]

            Duress is the next ground for annulling a marriage. Duress means undue pressure of threats that amount to coercion.[7] It should be noted, however, that mere allegations of threats may not be sufficient for an annulment. In Doscher v. Schroder, for example, a New Jersey Court rejected a claim of duress when the wife had testified that the husband had pressured her to marry him by threatening to tell her parents that she had once slept with an older man. Under the circumstances, the evidence had failed to indicate that this alleged pressure had forced her into the marriage.[8]

            Mental incapacity is another ground for voidability, but it must be so severe that the party is unable to understand the nature, effect, and consequences of the marriage when entered. Similarly, when a spouse is heavily under the influence of drugs or alcohol to the extent that she cannot understand what she is doing, the marriage may be voidable. In both cases, failure to object to the marriage when the incapacity or intoxication and’s and continuing to live with the other spouse may constitute ratification of the marriage.[9]

Finally, a court will find a marriage voidable when one spouse fraudulently induces the other into the marriage when the fraud relates to the “essence of the marriage.” The “essence of the marriage” can relate to children or the ability to have children, or lack thereof. If a husband, for example, doesn’t reveal that he is impotent or if a wife fails to reveal that she cannot carry a child, prior to the start of the marriage, that could be sufficient to warrant a finding of voidability due to fraud.

Other examples of grounds to void a marriage may include:

·         Concealment of pregnancy with another’s child;

·         Intent to fail to consummate the marriage or knowledge that he would be unwilling or unable to do so;

·         Concealment of a sexually transmitted disease; and

·         False representations regarding religious beliefs.

Courts hesitate to grant annulments based on fraud when the fraudulent statement related to peripheral issues, such as wealth, employment or status.[10] Other false statements that do not generally rise to the level of annulment because they are not considered to regard the essence of the marriage include:

·         Concealment of a previous marriage;

·         False representations regarding prior sexual activity; and

·         Concealment of alcoholism.[11]

            The process to obtain an annulment may not be faster than a divorce. The hearing and trial process for annulment requests are comparable to divorce positions and trials. That is, either can be quick and easy where the parties are amiable, either can also be contentious and drawn out where they are not. Couples with children seeking annulments must settle child custody and support to the same extent as would a divorcing couple.[12]. Fact-sensitive determinations, such as in the case of alleged fraud, may require trials and evidentiary hearings to a comparable extent as would divorce proceedings.

Grounds for a void or voidable marriage can be found at any time and there is no time limitation that starts running from the beginning of the marriage. Thus, a couple seeking an annulment could have been together for a day, two weeks, a year, or 20 years.[13]

The annulment is an alternative to divorce as a method to terminate a marriage. When an annulment is obtained, it is as though the marriage never happened. Nevertheless, the grounds for annulments are limited and seeking an annulment rather than a divorce may not necessarily save time or hassle.


[1] Am Jur 2d Annulment of Marriage § 1

[3] See e.g., ARS § 25-101

[4] Am Jur 2d Annulment of Marriage § 8

[5] Am Jur 2d Annulment of Marriage § 6

[6] Am Jur 2d Annulment of Marriage § 37

[7] Am Jur 2d Annulment of Marriage § 24

[8] Doscher v. Schroder, 105 N.J. Eq. 315, 147 A. 781 (1929)

[9] Am Jur 2d Annulment of Marriage §§ 29-32

[10] Am Jur 2d Annulment of Marriage §§ 9-11

[11] Am Jur 2d Annulment of Marriage §§ 13-23