What is an Annulment?
An annulment is a finding by a court that a marriage is void (invalid), as though it had never occurred.
What are the Grounds for an Annulment?
Either spouse can bring an action to annul a marriage on any of the following grounds:
- either spouse is incurably incapable of having sexual intercourse
- either spouse had not reached the age of legal consent (18) at the time of the marriage (a marriage between persons under 18 may be annulled, at the discretion of the court, if one of the spouses is still under 18 and wants an annulment. If the underage spouse chose to live with the other spouse after turning 18, and later seeks an annulment, it won’t be granted.)
- incurable insanity for at least five years after the marriage
- either spouse could not give actual consent to the marriage (could not understand the nature, effect, and consequences of marriage) as a result of some mental incapacity or deficiency.
- either spouse consented to the marriage as a result of the force or duress of the other spouse, and/or
- either spouse’s consent was obtained by fraud (the fraud must go to the essence of the marriage contract, and only the injured spouse can obtain the annulment).
What is a Declaration of Nullity of a Void Marriage?
Unlike an annulment, where the marriage can only be voided through an action for annulment, certain marriages are automatically void (not recognized), including the following:
- incestuous marriages - those between ancestor and descendant, brother and sister, uncle and niece, or aunt and nephew
- bigamous marriages - those between an unmarried spouse and someone who is already married (whose marriage was not terminated or dissolved), and
- any marriage that was not properly solemnized (e.g., as a result of some defect in the marriage ceremony).
Even though a void marriage is already null, New York courts allow spouses in a void marriage to bring a formal action - called an “action to declare the nullity of a void marriage.” Through these actions, spouses in a void marriage may obtain a formal declaration that their marriage is void and seek to enforce certain rights.
What Rights do I Have if my Marriage is Void?
The effect of a declaration of the nullity of a void marriage is to dissolve the marriage as a matter of public record, but it also allows the children of the marriage to be legitimized.
In addition, the court may make the same types of orders it makes in a divorce proceeding, including but not limited to the following:
- awarding alimony (also called maintenance)
- dividing marital property via equitable distribution
- determining separate property claims
- setting the proper amount of child support
- making arrangements for child custody and visitation, and
- awarding attorney’s fees, if appropriate.
Is There a Difference Between an Annulment, a Divorce, and a Declaration of the Nullity of a Void Marriage?
As a practical matter, no. In any of these actions, the marriage is legally dissolved as a matter of public record, and the court can award the same relief.
Is it Difficult to get an Annulment or Declaration of Nullity?
Yes. These types of actions require a higher degree of proof and corroborative evidence from other witnesses.