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).
Requirements for Annulment in California
Oftentimes, clients mistakenly assume the court will annul their marriage simply because it lasted a short time. However, in order to get an annulment under California law, parties must file a petition and allege one of several specific circumstances. Then, the parties must attend a court hearing, appear before a judge, and give oral testimony to substantiate the basis on which they are requesting the annulment.
Grounds for Annulment in California
There are several grounds listed in the California statute for annulment, including:
One or both of the spouses did not have capacity – for example, if under the age of 18;
One or both of the spouses were not of sound mind at the time of the wedding;
The spouses entered the marriage as a product of fraud;
The marriage was obtained by force;
One or both of the spouses were, at the time of marriage, physically incapable;
These grounds for annulment can be divided into two categories: void from the start of the marriage and voidable at the couple’s election. For example, cases of bigamy (except for a few exceptions) and incest are automatically void under the law. Other grounds are considered voidable depending on the parties’ conduct after the marriage.
Two Premises for California Annulment
There are two basic premises under which a California court will grant annulment of a marriage. First, the court will annul a marriage that is not valid or legal. Second, the court will annul a marriage that they can “determine” to be invalid. Remember: it is only possible to get a marriage annulled in California if it qualifies under the legal statutes for annulment.
1. Annulment Based on Illegal or Void Marriage
For the court to declare a marriage legally not valid, they would require evidence that the marriage was either incestuous or bigamous. In an incestuous marriage, the married parties or registered domestic partners are close blood relatives. On the other hand, in a bigamous marriage, one of the spouses or domestic partners is already married or in a registered domestic partnership relationship.
2. Annulment Based on Invalid or Voidable Marriage
More commonly, the court will annul marriages under the premise that they can “determine” them invalid. There are several circumstances under which California annulment laws grant this premise:
- Age of Party
If one of the parties was under the age of 18 and did not have parental consent to marry, the court would determine the marriage invalid.
- Prior Existing Marriage
If either party was already married to someone else, the parties could seek to annul the current marriage. However, note that this circumstance differs from bigamy. Bigamy is when a person deliberately remarries without finalizing divorce. On the contrary, with a prior existing marriage, a party typically believes they finalized their divorced before remarrying. A surprisingly common example is a spouse that has been missing for an extended period of time and is wrongly assumed to be dead. In this case, if the other spouse remarries and then discovers their spouse is alive, the court will determine the second marriage is invalid.
- Unsound Mind
When a party is unable to understand what they are doing or does not have the capacity to understand, the court refers to this circumstance as “unsound mind”. For instance, some people go to Las Vegas, get drunk, and decide to marry. If brought to court, this circumstance would be a basis for unsound mind.
Fraud occurs if either party married their spouse on the basis of false representations or circumstances. For example, the court would consider a 60-year-old falsely claiming to be 40 as fraud. That said, fraud can occur under a plethora of circumstances.
The court will annul a marriage that one party was forced into against their will.
- Physical Incapacitation
Finally, physical incapacitation usually has to do with the inability to consummate the marriage.
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.
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.
If you successfully get your marriage annulled, sometimes the court may deem one of the spouses a “putative spouse”. This allows the court to award alimony, divide marital property, and deal with custody issues even though the annulment technically rules that the marriage never existed.
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.