I. Annulment of Marriage
a. Introduction
i. Annulment and divorce are different in nature:
1. An annulment may be granted when proof is presented that a marriage is invalid or void at the time it was performed.
2. A divorce is granted when there was a valid marriage, and the relationship is being terminated.
a. Although the grounds for an annulment were historically developed, today all states have generated statutes that provide grounds for an annulment.
ii. A party seeking an annulment must produce evidence showing the invalidity of the relationship existed at the time of the marriage ceremony.
1. Time limitations set by statute for bringing an annulment vary by jurisdiction and depend on the theory under which an annulment is sought.
a. Although most annulment actions occur early in a relationship, on a rare occasion, a court may grant an annulment despite the fact the couple have lived together as husband and wife for several years.
2. Annulment actions today are few and often involve immigration and Social Security disputes, where a marriage either qualifies or disqualifies an individual for certain benefits.
iii. When a marriage is annulled, it is in theory considered to have never existed.
1. Consequently, no marital property could have been acquired during the time the parties were together.
2. Courts, however, will exercise equitable powers when considering annulment requests, and they may distribute property acquired during the time the parties were together in the purported marriage in a manner they believed to be just.
a. Most state statutes provide the courts with the authority to distribute property between the parties in such situations.
b. Void and Avoidable Annulment Actions
i. Defining a Void Marriage
1. Annulment actions involve relationships that may be void or voidable. A void relationship is a nullity and is invalid from its inception.
a. For example, a person who is already married may not marry another without obtaining a divorce from the first partner. Absent a divorce, the second relationship is considered void.
2. A marriage that is void typically is one that offends a strong public policy.
a. Examples of void marriages include relationships involving bigamy, polygamy, and incest.
3. A void marriage normally does not require a judicial declaration or action to establish that it is not valid.
a. However, an action may be sought to provide a party to a relationship with certainty and to establish a public record of its invalidity.
ii. Defining a Voidable Marriage
1. In contrast to a void relationship, a voidable relationship is one that is recognized as lawful until it is legally voided by a court order.
a. A void marriage may exist, for example, when a party lacked the capacity to consent to the marriage contract because of his or her age.
i. Note that if the underage party could have married with consent of a parent, guardian, or court, the marriage continues unless the disabled partner brings an action to void it.
b. Whether a court determines that an action is void or voidable may be of practical importance.
iii. Standing to Pursue an Annulment
1. Generally, either the disabled party or a third party to an alleged marriage may bring an annulment action to challenge its validity.
a. For example, a legal representative of a decedent’s estate may pursue an annulment action as long as it was commenced prior to the decedent’s death.
b. Obviously, an underage party has standing to seek an annulment of a marriage.
i. However, a party who is of marriageable age and, therefore, not under a disability, may not attack the validity of the marriage to the underage person.
2. The UMDA states that “a declaration of invalidity… may be sought by the underage party, his parent or guardian.” UMDA § 208(b).
c. Retroactivity
i. Dates
1. When a court declares that a marriage is annulled, a question remains regarding what date the order relates back to.
a. If the marriage is void because it is prohibited, common sense suggests that an order (even though not required in a void relationship) relates back in most cases to the date of the claimed marriage.
b. When a marriage is voidable, courts will us a different relation back approach, which appears to depend somewhat on the nature of the annulment claim and the jurisdiction where the action is brought.
i. The annulment may “relate back” and erase the marriage and all its implications from the outset; if the marriage is annulled, there can be no community property. Or, the marriage may be considered void from the date a court enters its order of nullification if one of the parties was incapable of consenting to the marriage for want of understanding.
1. For example, where a decree of dissolution provides that the payor’s obligation to pay alimony terminates upon remarriage, a later annulment of that marriage does not relate back so as to revive the payor’s obligation to pay.
c. It should be noted that various state statutes concerning property division and maintenance obligations may not necessarily reflect the relation-back theory.
ii. UMDA
1. UMDA, § 208(e), states that “unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support, and custody of children on dissolution of marriage are applicable to non retroactive decrees of invalidity.”
d. Mental Capacity, Etcetera
i. Mental Capacity
1. A valid marriage requires that both parties possess sufficient mental capacity to understand the nature of the contract and the duties and responsibilities it creates.
2. Generally, a party lacks the mental capacity to enter into a contract for marriage if that party is “incapable of understanding the nature, effect, and consequences of the marriage.” See 4 Am. Jur. 2d Annulment of Marriage § 30.
a. The relevant inquiry is whether mental incapacity existed at the time the parties entered into the marriage.
3. Edmunds v. Edwards:
a. Rule: A marriage is valid if the party has sufficient capacity to understand the nature of the contract and the obligations and responsibilities it creates.
ii. Age
1. The common law allowed a girl age 12, and a boy of age 14, to marry without the consent of parents or the approval and order of a court. Today, most jurisdictions set the age to legally marry by statute, and the minimum age is around 15 or 16 with parental or court consent.
2. The UMDA requires parental or judicial consent for persons 16 and 17.
3. If an underage person marries without consent of a parent or the court, the marriage is voidable (assuming the marriage would have been recognized had the court or a parent given consent).
a. If a person attempts a marriage where the law would not recognize the relationship under any circumstances, the marriage is void.
b. An annulment action may be maintained by the minor and usually by either parent of the minor or by a guardian of the minor’s person.
i. However, an annulment action is usually not allowed at the suit of a party who was of the age of legal consent when it was contracted or by a party who, for any time after s/he attained that age, freely cohabitated with the other party as husband or wife.
4. In re Barbara Haven:
a. Rule: A state may place age restrictions on the right to marry.
iii. Under the Influence
1. Most jurisdictions have promulgated statutes providing that an annulment may be granted if a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity, or because of the influences of alcohol, drugs, or other incapacitating substances.
a. An excessive use of intoxicants may render one incapable of contracting a marriage because of the inability to concentrate one’s mental faculties or to understand the marital obligations.
b. Absent a showing that the party ratified the marriage by continuing to voluntarily live with the other person following the ceremony, such a marriage may be annulled.
iv. Marriage Made
though physical duress is normally the evidence a court looks for in a party seeking an annulment on this ground, some courts will accept evidence of mental stress.
b. Many courts have held that test for duress is subjective, rather than being based on the reasonable person of ordinary prudence standard.
i. For example, a young man gets girl pregnant; judge threatens to prosecute him under state criminal seduction statute, but alternately gives him the option of marrying the girl in lieu of going to jail. Most courts have held that this would not constitute duress since young man still has a choice.
3. To have a marriage annulled on the grounds of coercion or duress, most courts will require clear and convincing evidence of the duress.
a. Duress must have existed at the time of the marriage, where complaining party could not act as a free agent in entering into the marriage due to coercive force or fear from another person.
g. Physical Incapacity
i. Impotence or Sterility
1. Impotence is defined as the want of power for copulation.
a. Historically, courts viewed procreation as a primary purpose of marriage. However, sexual relations were valued for sexual pleasure within marriage. Thus, historically impotence was a ground for an annulment, while sterility was not a ground for an annulment or divorce.
2. Today, impotence has been held to render a marriage voidable if the condition was unknown to the parties, or at least to the party not under the disability, at the time of the marriage.
a. To constitute impotence rendering the marriage invalid, the condition must be permanent and incurable and show that the other spouse was, at the time of marriage, and still is, incurably impotent (regardless of whether its cause is biological, organic, or even just a mental block).
3. The UMDA states that a court may annul a marriage entered into under circumstances where a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity. See UMDA § 208(a)(2).
h. Cohabitation as a Defense
i. Continued Cohabitation
1. As a general rule, once a disability of a partner is discovered, and the parties continue to live together has husband and wife, courts are reluctant to grant an annulment.
a. This rule reflects the strong public policy favoring marriage.
b. So, for example, if P files for an annulment claiming she was married under duress, but they cohabitated for two years afterwards, the court will most likely see their living together as a ratification of the marriage and tell P she should pursue a divorce.
i. Support and Property Distribution
i. Support
1. At common law, an annulment resulted in the bastardization of any children born during the marriage.
a. However, modern-day courts have made vigorous efforts to protect children of marriages where the parties sought an annulment that would bastardize any children.
b. Courts have denied relief where children were involved, leaving the only alternative remedy one of divorce.
c. UMDA § 207(c) provides that children born to a void marriage are legitimate.
ii. Alimony and Property Division
1. When an annulment is granted, courts have historically not provided relief similar to that provided when a couple divorce.
