annulment

Family law
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Annulment  · Divorce  · Alimony
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Conflict of Laws Issues
Marriage  · Nullity  · Divorce

Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process.

Grounds for annulment

Grounds for a marriage being voidable or void ab initio vary in different legal jurisdictions, but are typically limited to fraud, bigamy, and mental incompetence including the following:

1. Either spouse was already married to someone else at the time of the marriage in question;
2. Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age.)
3. Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4. Either spouse was mentally incompetent at the time of the marriage;
5. If the consent to the marriage was based on fraud or force;
6. Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
7. The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
8. Prisoners sentenced to a term of life imprisonment may not marry.
9. Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

The guilty party -- the one with responsibility for having caused the defect in the marriage -- is ordinarily disentitled to request a declaration of nullity. The victimized spouse may ordinarily apply for innocent spouse relief. The fact that a marriage was a nullity ordinarily does not prevent an innocent spouse from collecting the financial benefits of marriage, such as the rights to community property, spousal support, child support, and equitable contribution to attorney fees for litigation expenses.

Annulment in the Catholic Church

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Main article: Annulment (Catholic Church)

In the case of the Roman Catholic Church, annulment does not bear the same meaning as divorce. Some accuse the Catholic Church of hypocrisy for teaching that all marriages are permanent but providing the means of annulment. The Church attempts to reconcile these two seemingly opposing ideas by understanding that a "Declaration of Nullity" is not a dissolution of a marriage, but rather to determine whether a marriage was a sacrament (valid) or contrary in some way to Divine Law as understood by the Catholic Church. While some may try to use an annulment to get around the "no divorce" rule, that is not the reason the Church gives for the availability of annulment. According to the Church, an annulment affirms the Scriptural basis of divorce and at the same time affirms that in a true marriage, a man and a woman become one flesh before the eyes of God. The Church's teaching on marriage is that it is a Sacrament and that it is only validly contracted by the two individuals, so questions may arise as to whether that person is able to contract a valid marriage. In the Western tradition, the ministers of the marriage are the two individuals themselves, and the priest is a witness for the Church.

Marriages are declared null ab initio, meaning that the marriage has been essentially invalid from the beginning. Some Catholics therefore worry that their children will be considered illegitimate if they get annulments. Canon 1137 of the Code of Canon Law specifically affirms the legitimacy of children born in both recognized and putative marriages (those later declared null). Critics point to this as additional evidence that a Catholic annulment is similar to divorce — although civil laws that recognized both annulments and divorce regard the offspring of a putative marriage as legitimate.

An annulment verified by the Catholic Church is independent from obtaining a civil divorce, although before beginning a process in front of the Ecclesiastical Tribunal, it has to be clear that the marriage community cannot be rebuilt.

If someone has all the signs of being married previously, he or she must get an annulment before entering into a marriage in the Catholic Church, even if the individual was not married in the Catholic Church previously. Catholics acknowledge the indissolubility of marriage for any baptized persons who give themselves freely in the bond of marriage and recognize the marriages of other Christians in most cases. An exception is the so called Pauline privilege: In a case where two non-Christians are married, and one of them becomes a Catholic afterwards, and the other (still non-Christian) partner demands a divorce on that ground, the marriage can be dissolved and the Catholic partner is free to remarry in Church. This is not an annulment as the former marriage is considered as having been valid.

A common misconception is that if a marriage is annulled, the Catholic Church is saying the marriage never took place. The parties to the marriage know that the marriage took place. The Church is saying that the marriage was not valid; the valid marriage is what did not take place.

Reasons for annulment

Main article: Canonical impediment

A reason for annulment is called an diriment impediment to the marriage. Prohibitory impediments (which no longer exist in the Latin Code, CIC83) make entering a marriage wrong but do not invalidate the marriage, such as being betrothed to another person at the time of the wedding; diriment impediments, such as being brother and sister, or being married to another person at the time of the wedding, prevent such a marriage from being contracted at all. Such unions are called putative marriages.

Diriment impediments include:

• Consanguinity
• Insanity precluding ability to consent
• Not intending, when marrying, to remain faithful to the spouse (simulation of consent)
• One partner had been deceived by the other in order to obtain consent, and if the partner had been aware of the truth, would not have consented to marry
• Abduction of the woman, with the intent to compel her to marry (known as raptus), constitutes an impediment as long as she remains in the kidnapper's power. (In theory, the abduction of a man also constitutes an impediment, but no man has applied for annulment on these grounds.)
• Failure to adhere to requirements of canon law for marriages, such as clandestinity
• the couple killed the spouse of one of them in order to be free to marry
• the couple committed adultery, and one of the couple killed the spouse of one of them, in order to be free to marry

Some impediments can be dispensed, in which the Church exempts a couple, prior to the marriage, to the obligation to conform to the canon law. While some relationships can not have the impediment of consanguity dispensed, a marriage can be sanctioned between cousins. This renders the marriage valid, and so non-annulable. Again, if an invalid marriage has been contracted, and the diriment impediment can be removed, a convalidation or sanatio in radice can be performed to make the marriage valid.

See also: Pauline privilege

Annulment in New York State

The cause of action for annulment in New York State is generally fraud (DRL §140 (e)). There are other arguments; see the Statute.

generally means the intentional deception of the Plaintiff by the Defendant in order to induce the Plaintiff to marry. The misrepresentation must be substantial in nature, and the Plaintiff's consent to the marriage predicated on the Defendant's statement. The perpetration of the fraud (prior to the marriage), and the discovery of the fraud (subsequent to the marriage) must be proven by corroboration of a witness or other external proof, even if the Defendant admits guilt (DRL §144). The time limit is three years (not one year). This does not run from the date of the marriage, but the date the fraud was discovered, or could reasonably have been discovered.

A bigamous marriage (one party was still married at the time of the second marriage) cannot be annulled —it is void ab initio (not legal from its inception). However, either party (as well as certain other parties) can petition the Court with an "Action to Declare the Nullity of a Void Marriage" (DRL §140 (a)). The Court, upon proper pleadings, renders a judgment that the marriage is void. There may be effects of marriage such as a property settlement and even maintenance if the court finds it equitable to order such relief.

Multiple annulments

• Henry VIII of England had three^[1][2][3][4]of his six marriages annulled. These marriages were to Catherine of Aragon (on the grounds that she had already been married to his brother), Anne Boleyn^[5], (on the grounds that she allegedly seduced him with witchcraft and was unfaithful; not wishing to execute his legal wife, he offered her an easy death if she would agree to an annulment) and Anne of Cleves^[6] (on the grounds of non-consummation of the marriage and the fact that she had previously been engaged to someone else). Catherine Howard never had her marriage annulled. She committed adultery with Thomas Culpeper during the marriage, and she flirted with members of his court. Because of this, on November 22, 1541, it was proclaimed at Hampton Court that she had 'forfeited the honor and title of Queen', and was from then on to be known only as the Lady Catherine Howard. Under this title she was executed three months later, although both she and the onlookers believed she died as queen.^[7]

Islam

Nikah Mut'ah, or fixed time marriages, is a marriage form seen in Shia. Sunni Muslims deem it abrogated by the Islamic prophet Muhammad, while Shi'a Muslims disagree. Hence, according to Shi'a jurisprudence, it is a legal marriage form. Shi'a view divorce procedures (Arabic: talaq) as a last conflict resolution step in permanent marriages (Arabic: Nikah) before ending it. Shi'a do not engage in any divorce procedures (Arabic: talaq) at the end of the pre-determined period, they just annul the marriage, since there is no conflict to resolve.

References

See also

• Catholic marriage theology
• Divorce
• Nullity (conflict) for a discussion of the rules relating to the annulment of marriage (conflict) in the Conflict of Laws
• Separation

External links

• Catholic Encyclopedia "Canonical Impediments"
• Catholic Encyclopedia "Validation of Marriage"
• New York State Domestic Relations Law, Article 9

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