In California, an annulment, or a nullity of marriage, legally invalidates a marriage. This means that when a family law judge grants an annulment the marriage is voided and the parties are legally treated as if they had never married in the first place.
Note: Religious annulments are recognized and granted in some religions; however, religious annulments are not recognized in California law; therefore, religious annulments are not discussed in this article.
Annulment v. Divorce v. Legal Separation
An annulment is a void or voidable marriage. A divorce is a dissolution of a valid marriage that results in the division of assets, debts, legal benefits and legal liabilities. A legal separation is a division of legal assets, debts, and legal benefits (and legal liabilities), but the parties remain legally married and may not remarry.
How to Get an Annulment
There are two types of marriages that are allowed to be annulled: a void marriage, and a voidable marriage.
A void marriage: A void marriage is an invalid marriage from the very beginning of the marriage because it is a bigamous marriage or an incestuous marriage.
Bigamy: A bigamous marriage occurs when a person, who is already married, marries another person, or, marries another person knowing that the other person is already married.
Note: Bigamy is a misdemeanor crime in California. A person should consult with a family law attorney familiar with criminal defense, or vice versa, before making any statement, either written or oral, related to the annulment of a marriage based on bigamy.
Incest: An incestuous marriage occurs when two blood relatives marry. The degree of blood relationship required to prove an incestuous marriage is to the first degree of familial relationship (i.e. parent, child, sibling, aunt, uncle, nephew, niece, first cousin).
Note: Incest is a crime in California. A person should consult with a family law attorney familiar with criminal defense, or vice versa, before making any statement, either written or oral, related to the annulment of a marriage based on incest.
A voidable marriage: A voidable marriage is a marriage that is legal until at least one of the spouses proves that at least one of the following factors accompanied the purported consent to marry: Fraud or deceit, physical force, minority (underage spouse), incurable physical incapacity, unsound mind, or a genuine believe that a former spouse was deceased.
Annulment Based on Fraud or Deceit: If a person married another person only because of the first person’s fraud or deceit, then the person defrauded may seek an annulment of the marriage. The fraud or deceit must be closely related to the defrauded person’s reason for consenting to marry.
An annulment based on the grounds of fraud or deceit may be filed by the spouse who was defrauded or deceived and it must be filed within four (4) years of discovering the fraud or deceit.
Annulment Based on a Forced Marriage: If either party was forced to marry another person the person forced to marry may have the marriage annulled. The force required to invalidate a marriage must be sufficient force to overcome the person’s will to not consent to the marriage.
For example, an arranged marriage by force or a “shotgun wedding” might be annulled. An annulment based on the grounds of force must be filed within four (4) years of the date of marriage.
Note: The force required to gather “consent” to marriage does not have to be direct physical force. The force may be a threat of present of future bodily injury.
Annulment Based on Minority: If a spouse is a minor at the time of marriage the minor may have the marriage annulled anytime up to his or her twenty-second (22nd) birthday. A parent or guardian of the minor may ask for an annulment while the minor is still under eighteen (18). An emancipated minor, who was emancipated at the time of marriage, may not seek annulment based on minority.
Note: An annulment based on minority could implicate criminal liability (statutory rape or unlawful sexual intercourse). This is especially true where one of the parties to the marriage is asserting child custody rights for a child that was born while the mother was underage and there was no consent by the mother’s parent to the marriage. A person seeking a voidable marriage based on minority should not make any statement, oral or written, related to the annulment of marriage without first discussing his or her options with a family law lawyer familiar with criminal defense, or vice versa.
Annulment Based on Incurable Physical Incapacity: If either spouse is incapable of performing sexually at the time of marriage, and the disability prevents the couple from consummating the marriage, then the marriage may be annulled if it appears that the disability is permanent and the non-disabled spouse did not know of the disability at the time of marriage.
For example, permanent male impotence, without consummation of marriage, may be grounds for an annulment, if the non-disabled spouse did not know of the husband’s impotence at the time of marriage.
An annulment based on incurable physical incapacity may be filed by the spouse claiming that his or her spouse is physically incapable of sexual performance and it must be filed within four (4) years of the date of marriage.
Annulment Based on Unsound Mind: If either party to the marriage was unable to appreciate the nature of the commitment and obligations that accompanies marriage due to a disease or defect of the mind at the time of marriage then the marriage may be annulled any time before one of the spouses dies.
For example, if either spouse was severely intoxicated by drugs or alcohol at the time of marriage, and that intoxication was so severe that he or she could not voluntarily and knowingly consent to marry, then the spouse who is claiming severe intoxication may file for an annulment.
An annulment based on unsound mind may be filed by the party who was of unsound mind at the time of marriage, or by his or her legal conservator.
Note: California annulments based on unsound mind are common in cases where the parties are married after eloping to Las Vegas and after heavy use of alcohol and/or drugs just prior to marriage. However, when temporary intoxication leads to an unsound mind, the marriage may subsequently be ratified (made valid) after the person recovers from their temporary unsound mind.
In other words, if the parties stay married after recovering from severe intoxication, the they are not likely to be granted an annulment. Rather, a divorce may be the parties only remedy in this situation. Of course, every case is different and it is best to seek the assistance of a divorce attorneys before proceeding on any annulment or dissolution of marriage.
Annulment Based on the Belief that a Former Spouse is Deceased: This is different than bigamy. For bigamy, the marriage is void and invalid from the beginning of the marriage; but, when a spouse truly believes that his or her former spouse is deceased and the spouse believed to be deceased has been absent for at least five years, the new marriage is voidable, and not automatically void. An annulment based on the ground that a spouse truly believed his or her former spouse to be deceased may be filed by either spouse, or former spouse, as long as both spouses to the current marriage are still alive.
Note: Incurable insanity that occurs after marriage and irreconcilable difference are not grounds for annulment in California. Incurable insanity and irreconcilable differences are grounds that apply to California divorces.
Also, contrary to popular believe, a very short marriage does not automatically meet the grounds for annulment. The marriage must meet at least one of the factors above for a void or voidable marriage before an annulment may be granted. This is true even if the spouses are married for only one day.
Annulment Forms and Filing
California courts use the same forms for annulment, divorce, and legal separation. The person filing for the annulment must check the appropriate boxes to identify the type of legal action desired.
In general, annulment paperwork includes a petition, a summons, and a certificate of assignment. The annulment forms must also include a declaration that states the grounds for annulment. If the spouses have children together, the court requires additional forms to establish child support, child visitation, child custody, or paternity. Most forms must be properly served on the other party and court hearings are usually required.
Note: The required annulment forms do not provide information on how to prove that your case is void or voidable or whether the spouses could benefit more from a traditional divorce or legal separation in an otherwise voidable marriage. The forms also do not provide information on court procedure, law, or the proper production of, or objection to, evidence.
For example, witness examination for annulment cases based on severe intoxication of drug or alcohol at the time of marriage (unsound mind) requires a strong knowledge of the rules of evidence production and court procedures. If possible, a person seeking or opposing an annulment should seek the advice of annulment lawyer.
Divorce v. Annulment
Children: Children born during marriage are presumed to be the biological children of the married persons. This is true even if those parents later divorce; however, if spouses have children together and those spouses get an annulment, the presumption that children born during the marriage are the children of those married persons, does not exist. This means that the parties must establish parentage (paternity suit) for their children in common before child custody, child visitation, or child support may be awarded.
Property: Property acquired during a marriage, including retirement, bank savings, land, vehicles, etc., is generally treated as community property and divided equally upon divorce of the parties; however, if spouses have property in common and the spouses get an annulment, the legal presumption that property acquired during marriage is community property subject to equal division, does not apply.
Spousal Support: Spousal support, temporary or permanent, might be granted to either party upon divorce; however, if the spouses obtain an annulment then spousal support may not be awarded to either party.
Survivor Benefits: When spouses are legally married and one of the spouses dies, the surviving spouse has survivor benefits, such as the right to inherit, the right to receive insurance proceeds for wrongful death cases, and even the right to make end of life decisions and funeral arrangements. When a couple is granted an annulment all of those rights disappear as the marriage is legally treated as though it never occurred.
Note: A spouse in an invalid marriage may have “putative spouse” status. This means that they may have rights to community property and spousal support despite the fact that the marriage was never valid. To prove “putative spouse” status requires proof of a good faith belief that the marriage was legal under California law.
Also, the terms community property and spousal support are not usually used in court after an annulment because those terms are associated with a valid marriage and divorce; nevertheless, for purpose of analogy, those terms are sometimes used to describe what otherwise would be considered community property or spousal support.
Note: A prenuptial agreement (prenup) might be invalidated upon a nullity of marriage in some circumstances. For more information on prenuptial agreements in relation to divorce, legal separation or annulment, contact our family law attorneys today for a free consultation.
Common Law Marriage & Annulment
A Common Law marriage is a legal marriage in California. California does not create Common Law marriages, but if a Common Law marriage was created in another state that recognizes such marriages, then California will also recognize the validity of that marriage.
With respect to annulments, almost no Common Law marriage will qualify for an annulment because the statute of limitations for annulment is shorter than most statutes that create common law marriages in the first place.
The exception might be for an annulment of a Common Law marriage based on unsound mind at the time of the marriage; however, because a person could lose property rights based on an annulment of a Common Law marriage, a divorce or legal separation, which is based upon incurable insanity might be a preferred choice for seeking to end a marriage.
Understandably, this is very complicated area of law. For more information on Common Law marriage as they relate to annulments or legal separations, contact our divorce and family law attorneys for a free consultation.
If you are considering an annulment, a legal separation, or a divorce, contact our family law attorneys today for a free consultation. Our consultations are discreet and private and our family law attorneys are experienced and successful. We have successfully handled all manner of family law cases, including annulment cases that have possible criminal implications, such as annulments based on incest, bigamy, minority, and fraud. We also handle domestic violence restraining orders, juvenile dependency court matters (CPS defense), and fathers’ rights cases. Call today!
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Selected Legal References for
California Nullity Law
FL 2200: Marriages between parents and children, ancestors and descendants of every degree, and between siblings of the half as well as the whole blood, and between uncles or aunts and nieces or nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.
FL 2201(a): A subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void, unless:
(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.
(2) The former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.
(b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.
FL 2210: A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was under 18 years of age, unless the party entered into the marriage pursuant to Section 302 or 303.
(b) The spouse of either party was living and the marriage with that spouse was then in force and that spouse (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.
(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her spouse.
(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.
(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as his or her spouse.
(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.
FL 2212(a): The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons.
(b) A judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them.
FL 2251(a): If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall:
(1) Declare the party or parties, who believed in good faith that the marriage was valid, to have the status of a putative spouse.
(2) If the division of property is in issue, divide, in accordance with Division 7 (commencing with Section 2500), that property acquired during the union that would have been community property or quasi-community property if the union had not been void or voidable, only upon request of a party who is declared a putative spouse under paragraph (1). This property is known as “quasi-marital property.”
(b) If the court expressly reserves jurisdiction, it may make the property division at a time after the judgment.
FL 2252: The property divided pursuant to Section 2251 is liable for debts of the parties to the same extent as if the property had been community property or quasi-community property.
FL 2253: In a proceeding under this part, custody of the children shall be determined according to Division 8 (commencing with Section 3000).
FL 2254: The court may, during the pendency of a proceeding for nullity of marriage or upon judgment of nullity of marriage, order a party to pay for the support of the other party in the same manner as if the marriage had not been void or voidable if the party for whose benefit the order is made is found to be a putative spouse.