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Annulments (Nullity of Marriage)

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.

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 crime in California, see PC 281.

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, see PC 285.

A voidable marriage: A voidable marriage is a marriage that is legal until at least one of the spouses proves that one of the following factors accompanied the consent to marry: Fraud or deceit,  forceminority (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 closely be 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.

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 may not seek annulment based on minority.

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 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 claiming that his or her spouse is of unsound mind, or by a conservator of the spouse of unsound mind. 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 or drugs just prior to 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 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 required. The required annulment forms may be found at right. See Annulment Forms.       

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 of spouses that divorce are presumed to be the biological children of the divorced spouses; however, if spouses have children together and spouses get an annulment, the legal presumption that children born during a valid marriage are the biological children of the spouses, 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 the 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.

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.

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, successful, and passionate in all family law matters.


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