annulment

annulment

[uh-nuhl-muhnt]

Legal invalidation of a marriage. It announces the invalidity of a marriage that was void from its inception. It is to be distinguished from dissolution or divorce. To justify annulment, the marriage contract must have a defect (e.g., incompetence of one party because of age, insanity, or a preexisting marriage). Continued absence of one party may also justify annulment. Generally, annulment is easier if the marriage is unconsummated. Both secular law and Christian canon law have annulment procedures.

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Family law
Entering into marriage
Prenuptial agreement  · Marriage
Common-law marriage
Same-sex marriage
Legal states similar to marriage
Civil union  · Domestic partnership
Registered partnership
Dissolution of marriage
Annulment  · Divorce  · Alimony
Issues affecting children
Paternity  · Legitimacy
Adoption  · Legal guardian
Emancipation of minors
Parental responsibility
Contact (including Visitation)
Custody  · Child support
Areas of possible legal concern
Spousal abuse  · Child abuse
Child abduction
Adultery  · Bigamy  · Incest
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. Generally speaking, annulment, despite its retrospective nature, still results in any children born being considered legitimate in the United States and many other countries.

Annulment in the Catholic Church

In the Roman Catholic Church, a marriage is considered to be a valid contract entered into between two willing parties, and ratified by Divine sanction. In simplest terms, it is necessary that it be marriage that is contracted, that it actually be contracted (i.e., a valid ceremony/contract be performed), and that both parties enter willingly into the contract. If any of these conditions lack, then the marriage is not contracted, Divine sanction is not obtained, and there is in actual (and religious) fact no marriage. An annulment is a finding later that there was no actual marriage contracted in God's eyes, and therefore no marriage in reality (from the religious point of view), regardless of civil ordinance or appearance to humans.

Therefore, an annulment of a marriage is much more analogous to a finding that a contract of sale was invalid, and hence, that the property for sale must be considered to have never legally transferred possession, than analogous to a divorce, which is more like returning the property after a consummated sale.

These four preconditions give rise to the common fourfold classifications for bases of annulment, defect of form, defect of contract, or unwilling or unable parties.

The contract is defective in form if the marriage ceremony is invalid, such as the case of two Catholic persons being married outside of the Catholic Church.

The contract is defective of contract if it was not a marriage that was contracted, such as if there was a defect of intent on either side. This can occur if either party lacked the intent to enter into a lifelong, exclusive union, open to reproduction.

If either party was coerced, they lacked willingness, and therefore lacked intent.

If either party was married to another, they were unable to enter into the contract. Also, certain relationships of blood render the parties unable to enter into contract. Also, parties of the same gender are unable to enter into contract.

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 or contrary to the prescriptions of canon law regulating marriage. 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.

For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. -Catechism of the Catholic Church #1629

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. Another exception occurs in some states, which recognise to the Catholic Church the right to perform marriages that are automatically transcribed to the civil records: in those countries, the annulment may be granted the exequatur and hence induce a civil divorce. This is for instance the case in Italy.

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 persons who give themselves freely in the bond of marriage and recognize the marriages of other Christians in most cases.

Privilege of the Faith cases (Petrine and Pauline) are exceptions. Pauline privilege: In a case where two non-baptized are married, and one of them becomes a Christian afterwards, and the other will not get baptized, the marriage may be dissolved and the Christian partner is free to remarry in Church. This is not an annulment as the former marriage is presumed to have 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

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 a person, with the intent to compel them to marry (known as raptus), constitutes an impediment as long as they remain in the kidnapper's power.
  • 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.

Fraud 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 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, (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 (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 honour 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.

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