Overview of Annulment

Like a traditional divorce, an annulment ends a marriage. However, an annulment is a legal proceeding that goes further by declaring a marriage invalid or void through a court order. It’s as if the marriage never happened. Some individuals may want an annulment in order to avoid any stigma they believe is associated with divorce. This article covers only civil annulments, not religious annulments, which can only be granted by a church or clergy and have no legal effect on martial status.

What are the Grounds for an Annulment?

New York recognizes five grounds for annulment. Unlike a divorce which can be based on irreconcilable differences, to obtain an annulment, one of the following grounds must be proven. Those grounds include:

• one or both spouses were under age 18 at the time of the marriage
• one or both spouses were unable to consent to marriage due to mental incapacity
• either spouse is physically unable to have sexual intercourse
• either spouse was incurably mentally ill for at least five years, or
• the marriage consent was obtained by duress, coercion or fraud.

What Happens When the Underage Spouse Reaches 18?

While the fact that one or both spouses was underage at the time of marriage constitutes grounds for an annulment, if the spouses continue to freely live together (cohabitate) after both have reached the age of consent, such a claim is waived.

What Happens if a Mentally Ill Spouse has a Period of “Sound Mind”?

A marriage can be annulled on the grounds of incurable insanity. However, if the mentally ill spouse has a period of sound mind and the spouses continue to cohabitate, the marriage is deemed ratified and the grounds of mental illness are waived even when and if the mental illness returns.

Can Fraud Be Waived?

Although fraud is grounds for an annulment, fraud can be waived by the spouses continuing to live together after discovering the fraud. Specifically, in a situation where fraud would be sufficient for an annulment, if the innocent spouse discovers the fraud and does not immediately separate and live apart from the offending spouse, the fraud may have been waived and the innocent spouse has ratified the marriage, preventing an annulment on fraud grounds. Fraud may also be waived by acquiescence (agreement) such as in a case where a spouse has refused to comply with a promise to have children and the otherwise innocent spouse was aware contraceptives were being used by the offending spouse. See Gardner v. Gardner, 283 A.D. 1004, 130 N.Y.S.2d 859 (4^th Dep’t 1954).

Can Duress Be Waived?

Yes. New York law does not allow a marriage to be annulled on the ground of force or duress if at any time before the marriage, the spouses voluntarily lived together as husband and wife.

How Do I Get an Annulment?

An annulment in New York requires a trial and hearing before a judge. Unlike a divorce which can be granted upon written or sworn testimony without a trial, an annulment will require at least one of the grounds to be proven in court. This will require paperwork to be filed with the court and you to bring evidence including documents and/or witnesses that can support your claim for annulment.

For more specific information regarding the procedure to obtain an annulment and what to expect at a hearing, please contact a local New York family law attorney for assistance.

Effects of an Annulment on Children and Support

In New York, although an annulment results in a voidable marriage, it does not affect the legitimacy of children born during the marriage. Simply, children born while parents are married in a lawful state or religious ceremony are legitimate even if that marriage is later annulled or declared void by a judge. Additionally, an annulment does nothing to affect custody or child support and instead establishes a presumption of paternity.

Resources

For a complete list of the grounds and effects of an annulment proceeding in New York, see N.Y. Dom. Rel. Law §140(b-e); N.Y. Dom. Rel. Law §24; and 48 N.Y. Jur. 2d Domestic Relations §2441.

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