Annulment For A Marriage
I can bring an annulment to declare your marriage “null and void,” that is void ab initio (void from the beginning), when the grounds exist. The specific grounds for an annulment are contained in the New York domestic relations law. For all annulments, a corroborating witness is necessary. If the matter is uncontested, a corroborating affidavit is sufficient.
To learn your rights when it comes to annulment, call my office for a free consultation at 718-720-1000.
Marriages That Are Never Legal
Essentially, there are two situations where annulments are appropriate: “void” and “voidable” marriages. Void marriages are those marriages that can never be legal or legitimized. Technically, they do not even need to be annulled as they are not valid marriages:
- Incestuous marriages: An incestuous marriage is defined as one between an ancestor and a descendant (i.e., father-daughter, mother-son), a brother and sister, an uncle and niece, or an aunt and nephew. There are no defenses to an incestuous marriage entered into in New York.
- Former spouse is still alive: When a prior spouse is living and the marriage has not been dissolved, any subsequent marriage is void. Under New York law, the state or courts will not recognize a bigamous marriage under any circumstances. Even if the same was done in another state.
- Marriage commitment made without your consent: A marriage that was solemnized by someone other than that person authorized by law means the marriage is not valid.
Annulments That Need A Court Judgment
Voidable marriages are not automatically void by law and a court judgment is required to have them declared “void.” A void marriage here is void from the date of the judgment of the nullity, not from the date of the marriage.
Courts may also deny the request to have the marriage voided, and rule that the marriage should continue or that a divorce action is necessary to dissolve the marriage. The following represents some examples of when a marriage is voidable:
Marriage As A Minor
The age of consent to marry in New York is 18. Under 18, written consent of both parents (if living) is required. Under 16, parental consent and a judge’s approval is necessary as well. No person 14 or younger may marry in this state. If a party is less than 18, either parent of the underage party, or the underage party’s guardian or next friend, may seek to have the marriage annulled. It is in the court’s discretion to grant an annulment, however. The right to seek an annulment terminates when the minor turns 18.
The court will determine if a party to the marriage was capable of fully understanding the nature of the marital relationship and its consequences. If a relative is unavailable to act on behalf of the spouse alleged to be mentally deficient, the court may permit a nonrelative to do so as the “next friend,” as defined under the domestic relations law.
An action based on mental retardation may be brought during the lifetime of either spouse, or by any relative of the mentally retarded spouse who has an interest in annulling the marriage. A corroborating physician’s testimony may be required.
Marriage By Reason Of Force, Duress Or Fraud
Both parties must knowingly and voluntarily consent to the marriage of their own free will. The marriage may be annulled as void if either party consents as the result of duress, force or fraud. An action based upon these grounds may be brought by any party to the marriage, a parent of the party or a relative of the party who has an interest in annulling the marriage.
When the grounds for an annulment are based upon duress or force, the annulment may be brought at any time and the statute of limitations is inapplicable. The duress or force must be shown to have deprived a party of free will.
When fraud is alleged, the action must be brought within three years of the discovery of the fraud and the aforesaid five-year statute of limitations is not applied. A defense to the action is that If the parties cohabit after the time of duress or force, or after the discovery of the fraud, an annulment will not be given, as the marriage will be deemed ratified.
Incurable Mental Illness
An annulment may be granted if one spouse develops an incurable mental illness for five years or more. The mental illness can develop after the marriage but the illness must exist for at least five years. The action may be brought by either spouse or on behalf of either spouse.
Note that the court is authorized to order a nondurational award of support to the mentally ill spouse.
Annulments And Child Custody
Any children born during an annulled marriage are deemed legal and legitimate. Moreover, the court is authorized to make every other award that is available in a traditional divorce action, including custody, child support, spousal maintenance, equitable distribution and counsel fees.
Get The Facts By Speaking With A Skilled Lawyer
I fully appreciate that this only outlines the facts, not the specifics of what you might be facing. Contact me at 718-720-1000 to discuss your particular concerns or questions about annulment in a free consultation.