When the validity of the marriage is in doubt, petitioning for a judgment of nullity (rather than marriage dissolution) is appropriate. Divorce and annulment of a marriage are premised on completely different assumptions:
Dissolution: A dissolution action seeks to terminate a valid marriage on grounds arising after the marriage (CA Family Code § 2310);
Annulment: An annulment in California proceeding seeks to terminate the marriage based on the theory that, for reasons existing at the time of the marriage, no valid marriage ever occurred (i.e., the marriage, from its inception, is either void or voidable. In other words, whereas a dissolution action seeks to terminate marital status, a nullity action seeks to determine that the marriage status never existed under California law).
A marriage may be invalid from its inception because of irregularities in statutory procedure. Ordinarily, these irregularities are due to license, solemnization, authentication, or because of other legal issues that render the marriage void or voidable (incestuous, bigamous, induced by fraud or force, party under age of consent, etc.).
Requirements for a Valid Marriage in California
Marriage under California law is a personal relation arising out of a civil contract between a man and a woman. The consent of the parties capable of making that contract is necessary. The parties consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license, solemnization, and authentication; the “certificate of registry of marriage” must be filed with the proper agency. California has abolished the concept of “common law marriage”; therefore, a valid marriage cannot be created in California solely by the parties consent or mere cohabitation.
California Annulment Requirements
In California an annulment is a process of obtaining an order that the marriage never existed, and restores the parties to single status. The grounds for annulment are more complicated than for a dissolution proceeding and are stated in the California Family Code. The grounds are:
Petitioner’s age when married
Prior existing marriage or domestic partnership
Statute of Limitations to File for Annulment
Most people are aware that there are certain statutes of limitations when filing a lawsuit. When filing a divorce or a legal separation, there is no statute of limitation. What surprises most people is learning that annulments do have a deadline or statute of limitation. If the deadline runs out, a person is unable to file for an annulment and would have to file a regular dissolution proceeding.
The period of time within which an individual can file for an annulment varies based on the statutory basis or reason the annulment is being filed. There are several reasons a person can seek an annulment in California, and each has it’s own statute of limitation.
If a person is seeking an annulment alleging that the person who married was under the age of 18, the annulment must be filed within 4 years after the person reaches the age of 18. It should be noted that a parent or guardian of a minor can seek an annulment while the minor is under the age of 18 years of age.
An annulment filed on the basis of physical incapacity can be filed by either party who is claiming their spouse is physically incapacitated. The proceeding must be filed within four years of the marriage or, in the case of domestic partnerships, within four years of registering the domestic partnership.
How to Annul a Marriage in California – The Annulment Process
In the annulment process, the court can provide for orders regarding child support and property. It is important to remember that if the parties have children, you must request the court establish paternity for any children you have had together with your spouse.
Unlike in a dissolution or legal separation proceeding, formal testimony is required and there must be a court hearing. At this hearing, the Petitioner will need to explain to the court their reasons and legal basis for seeking an annulment of their marriage. A hearing can take place no earlier than 31 days following the date of service of the Summons and Petition on the other party. At the hearing, if the court approves the grounds for the annulment, a judgment of nullity will be immediately granted, restoring the parties to single status and allows them to immediately remarry after the hearing. There is no six month waiting period.
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