Annulment

Annulment is a legal procedure for declaring a marriage null and void.^[1] Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment; for example, this is the case in section 12 of the Matrimonial Causes Act 1973 in England and Wales^[2]). In legal terminology, an annulment makes a void marriage or a voidable marriage null.^[3]

Void vs voidable marriage

A difference exists between a void marriage and a voidable marriage .

A void marriage is a marriage which has no legal recognition (was not legally valid in the first place, i.e. is void ab initio). Such a marriage is automatically null, although a declaration of nullity is required to establish this. The process of obtaining a declaration of nullity is similar to an annulment process. Despite its retroactive nature, children born before an annulment are considered legitimate in many countries. Reasons for a void marriage may include, depending on jurisdiction, consanguinity (incestual marriage), bigamy, group marriage, child marriage.^[4][5]

A voidable marriage is a marriage which can be canceled at the option of one of the parties. It is a valid marriage, but is subject to cancellation if contested in court by one of the parties to the marriage. The validity of a voidable marriage can only be made by one of the parties to the marriage; thus, a voidable marriage cannot be annulled after the death of one of the parties. A marriage can be voidable for a variety of reasons, depending on jurisdiction. Forced/coerced marriages are usually voidable. In countries where marriage law is influenced by religion (especially Roman Catholicism) there can be numerous reasons for a marriage to be voidable (see section below).

The principal difference between a void and voidable marriage is that, in the case of the former, because it is invalid from the beginning, it can be voided ex-officio; while in the case of the latter it is only the spouse himself/herself who can ask for an annulment (in some cases such as if the spouse is a minor or mentally disabled a third party representative such as a parent, legal guardian or child protective service can start an annulment acting as the legal representative of said spouse). These differences are very relevant, because they represent the official policy on issues such as forced marriage for instance: if such marriage is classified legally as void - then the state can cancel it even against the will of the spouses; if it is voidable - then the state cannot act in the absence of an application by a spouse even if the state knows the marriage is forced.^[6]

Annulment in Christianity

Anglicanism and Methodism

The Church of England, the mother church of the worldwide Anglican Communion, historically had the right to grant annulments, while divorces were "only available through an Act of Parliament."^[7] Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.^[7]

Methodist Theology Today, edited by Clive Marsh, states that:

when ministers say, "I pronounce you husband and wife," they not only announce the wedding—they create it by transforming the bride and groom into a married couple. Legally they are now husband and wife in society. Spiritually, from a sacramental point of view, they are joined together as one in the sight of God. A minute before they say their vows, either can call off the wedding. After they say it, the couple must go through a divorce or annulment to undo the marriage.^[8]

Catholicism

According to Catholic dogma, annulment is analogous to a finding that a contract of sale is invalid, and hence, that the property for sale must be considered to have never been legally transferred into another's ownership. A divorce, on the other hand, is viewed as returning the property after a consummated sale. Despite this, annulments have historically been performed well after consummation (especially for royalty) since divorce was not an option; these exceptional circumstances usually required a papal dispensation. Politics could influence the annulment process. Henry VIII of England unsuccessfully petitioned Pope Clement VII for an annulment of this type.^[9]

A "Declaration of Nullity" is not viewed by the Church as the dissolution of a marriage. The Church teaches that the marriage of baptized persons is a sacrament and, once consummated and thereby confirmed, cannot be dissolved as long as the parties to it are alive.

A valid natural marriage is not a regarded as sacrament, however, if at least one of the parties is not baptized. In certain circumstances it can be dissolved (divorce) in cases of Pauline privilege^[10] and Petrine privilege,^[11] but only for the sake of the higher good of the spiritual welfare of one of the parties.

The Church holds the exchange of consent between the spouses to be the indispensable element that "makes the marriage". The consent consists in a "human act by which the partners mutually give themselves to each other": "I take you to be my wife" - "I take you to be my husband." This consent that binds the spouses to each other finds its fulfillment in the two "becoming one flesh". If consent is lacking there is no marriage. The consent must be an act of the will of each of the contracting parties, free of coercion or grave external fear. No human power can substitute for this consent. If this freedom is lacking the marriage is invalid. For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. -Catechism of the Catholic Church, 1626-1629

Although an annulment is thus a declaration that "the marriage never existed", the Church recognizes that the relationship was a putative marriage, which gives rise to "natural obligations". In canon law, children conceived or born of either a valid or a putative marriage are considered legitimate,^[12] and illegitimate children are legitimized by a putative marriage of their parents, as by a valid marriage.^[13]

The Catholic Church considers a Catholic marriage to be a contract entered into between a man and a woman before God, with the priest overseeing the wedding ceremony. Certain conditions are necessary for a marriage to be valid in canon law. Lack of any of these conditions makes a marriage invalid and is a basis for annulment. Accordingly, apart from the question of diriment impediments dealt with below, there is a fourfold classification of other grounds for annulment: defect of form, defect of contract, defect of willingness, defect of capacity.

• The contract is defective of form, if the marriage ceremony is invalid, such as the case of two Catholic persons being married outside of the Catholic Church.
• The contract is defective of contract, if it was not a marriage that was contracted, such as if there was a defect of intent on either side. This can occur if either party lacked the intent to enter into a lifelong, exclusive union, open to reproduction. In the Church's understanding, the marriage contract can only be between a woman and a man.
• The contract is defective of will because of "mental incapacity, ignorance, error about the person, error about marriage, fraud, knowledge of nullity, simulation, conditioned consent, force or grave fear".^[14]
• The contract is defective of capacity, if either party was married to another and thus unable to enter into the contract. Also, certain relationships of blood render the parties unable to enter into contract.

For annulment, proof is required of the existence of one of these defects, since Canon law presumes all marriages are valid until proven otherwise.^[15]

An annulment declared by the Catholic Church is distinct from a civil divorce. A civil divorce may serve as proof for the ecclesiastical tribunal that the marriage community cannot be rebuilt. In some countries, such as Italy, in which Catholic Church marriages are automatically transcribed to the civil records, a Church annulment may be granted the exequatur and treated as the equivalent of a civil divorce.

Canonical impediments

A reason for invalidity and thus for annulment is what is called a diriment impediment to a marriage. A prohibitory impediment such as that concerning marriage, without prior permission of the local ordinary, of a Catholic with a non-Catholic Christian makes entering a marriage wrong, but does not invalidate the marriage. A diriment impediment, such as being brother and sister, or being married to another person at the time of the wedding, prevents a marriage from being validly contracted at all. The union resulting is called a putative marriage.

The diriment impediments are:^[16]

• Age below 16 for a man, 14 for a woman^[17]
• "Antecedent and perpetual impotence to have intercourse";^[18]
• Being bound by a previous marriage;^[19]
• A baptized Catholic with regard to marrying a non-baptized person;^[20]
• Holy orders;^[21]
• A public perpetual vow of chastity in religious institute;^[22]
• Abduction of a woman with a view to marriage, unless she freely chooses marriage after being safely freed;^[23]
• Having killed one's own spouse or the spouse of the other party with a view to the wedding being attempted or having jointly killed either spouse even without intent to get married;^[24]
• Consanguinity in the direct line or up to the fourth degree (first cousins) in the collateral;^[25] if the relationship is merely legal, not of blood, the impediment holds for the direct line but only up to the second degree (sibling) in the collateral line;^[26] a similar impediment arises for marriage in the first degree of the direct line (parent or child by another union) with a blood relative of someone with whom one has been publicly living without being married;^[27] also from affinity a diriment impediment arises in the direct line (ancestor or descendant of one's spouse)^[25] and, for Eastern Catholics only, in the collateral line up to the second degree (sibling).^[28]

Conversely, the Church may grant a dispensation from some impediments, exempting a particular couple from the obligation of the law. The marriage is then valid, and so non-annulable. If a marriage has been contracted invalidly, the Church can still exempt from some diriment impediments, granting a convalidation or sanatio in radice of the marriage. Pope Julius II issued one such dispensation allowing Henry VIII of England to marry Catherine of Aragon, because Catherine had previously been briefly married to Henry's brother Prince Arthur, who had died after 20 weeks of marriage to Catherine.^[29]

Annulment in Islam

Faskh means "to annul" in Islam.^[3] It is a Sharia-granted procedure to judicially rescind a marriage.

A man does not need grounds to divorce his wife in Islam. To divorce, he can simply invoke Talaq and part with the dower (brideprice) he gave her before marriage; or, he can invoke Lian doctrine in case of adultery, self-certify and swear by Allah four times, and Sharia requires the court to grant divorce requested by the man.^[3][30]

In contrast, Sharia does not grant a Muslim woman simple ways to end her marital relationship - her options are limited and burden of evidence set high. Faskh (annulment) doctrine specifies certain situations when a Sharia court can grant her request and annul the marriage.^[3][31]

Grounds for Faskh are:^[3][32] (a) irregular marriage (fasid),^[33] (b) forbidden marriage (batil),^[34] (c) the marriage was contracted by non-Muslim husband who adopted Islam after marriage,^[35] (d) the husband or wife became an apostate after marriage, (e) husband is unable to consummate the marriage. In each of these cases, the wife must provide four independent witnesses acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.^[30]

In Sunni Maliki school of jurisprudence (fiqh), cruelty, disease, life-threatening ailment and desertion are additional Sharia approved grounds for the wife or the husband to seek annulment of the marriage.^[3] In these cases too, the wife must provide two male witnesses or one male and two female witnesses or in some cases four witnesses,^[32] acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.

In certain circumstances, an unrelated Muslim can petition a Qadi to void (faskh) the marriage of a Muslim couple who may not want the marriage to end. For example, in case the third party detects apostasy from Islam by either husband or wife (through blasphemy, failure to respect Sharia, or conversion of husband or wife or both from Islam to Christianity, etc.).^[32] In cases of apostasy, in addition to annulment of the marriage, the apostate may face additional penalties such as death sentence, imprisonment and civil penalties unless they repent and return to Islam.^[36]

Annulment in the state of New York

New York law provides for: Incestuous and void marriages (DRL §5); Void marriages (DRL §6) Voidable marriages (DRL §7).^[37]

The cause of action for annulment of a voidable marriage in New York State is generally fraud (DRL §140 (e)). There are other arguments; see the Statute. Fraud generally means the intentional deception of the Plaintiff by the Defendant in order to induce the Plaintiff to marry. The misrepresentation must be substantial in nature, and the Plaintiff's consent to the marriage predicated on the Defendant’s statement. The perpetration of the fraud (prior to the marriage), and the discovery of the fraud (subsequent to the marriage) must be proven by corroboration of a witness or other external proof, even if the Defendant admits guilt (DRL §144). The time limit is three years (not one year). This does not run from the date of the marriage, but the date the fraud was discovered, or could reasonably have been discovered.

A bigamous marriage (one where one party was still married at the time of the second marriage) as well as an incestuous marriage is void ab initio (not legal from its inception). However, there is still the need for an "Action to Declare the Nullity of a Void Marriage" (DRL §140 (a)), upon which the Court, after proper pleadings, renders a judgment that the marriage is void. There may be effects of marriage such as a property settlement and even maintenance if the court finds it equitable to order such relief.

Annulment in the state of Nevada

In Nevada, the qualifications for annulment^[38] include: a marriage that was void at the time performed (such as blood relatives, bigamy), lacked consent (such as, underage, intoxication, insanity), or is based on some kind of dishonesty. See also Nevada Annulment Statutes. To file actions based on fraud, you must have separated from your spouse as soon as you learned of the fraud.

Annulments in Nevada require a residency of at least 6 weeks, including a signed witness statement of having been living in Nevada for that amount of time.

Annulment in England and Wales

England and Wales provides for both void and voidable marriages.^[5]

• Void marriage: spouses are closely related; one of the spouses was under 16; one of the spouses was already married or in a civil partnership
• Voidable marriage: non-consummation; no proper consent to entering the marriage (forced marriage); the other spouse had a sexually transmitted disease at the time of marriage; the woman was pregnant by another man at the time of marriage

Section 13 of the Matrimonial Causes Act 1973 provides for certain restrictions in regard to the possibility of annulling voidable marriages, including where the petitioner knew of the "defect" and of the possibility of annulment, but induced the respondent to believe that he would not seek an annulment; or where it would be "unjust" to the respondent to grant the decree of nullity. There is usually a time limit of three years from the date of the marriage in order to institute the proceedings.^[39]

Annulment in Australia

Since 1975, Australian law provides only for void marriages. Before 1975, there were both void and voidable marriages. Today, under the Family Law Act 1975(Cth.) a decree of nullity can only be made if a marriage is void.^[40]

A marriage is void if:^[41][42][43]

• one or both of the parties were already married at the time (i.e. bigamy)
• the parties are in a prohibited relationship (i.e. closely related such as siblings)
• the parties did not comply with the marriage laws in the jurisdiction where they were married (note that although a marriage contracted abroad is in general considered valid in Australia, in certain cases, such as when there are serious contradictions with the marriage laws of Australia, the marriage is void)
• one or both of the parties were under-age and did not have the necessary approvals, (minimum marriageable age is 16, but 16 and 17 years-olds need special court approval) or
• one or both of the parties were forced into the marriage.

Annulment in France

In France, a country of Roman Catholic tradition, annulment features prominently in law, and can be obtained for many reasons. The law provides for both void and voidable marriages.^[44] (see articles 180 to 202, and articles 144, 145, 146, 146-1, 147, 148, 161, 162, 163, and 164 of the Civil Code)

• void marriage: forced marriage (not to be confused with consent obtained under deception which makes a marriage voidable not void); underage marriage; bigamy; incestuous marriage; lack of legal competence of the registrar; and clandestine marriage (i.e. hiding the marriage from the public, no witnesses present)
• voidable marriage: vices of consent, i.e. consent obtained under deception/by misrepresentation of one's personal characteristics, personal past, intentions after marriage, etc., where the deceived spouse discovers after the marriage the deceit (given a very broad interpretation by the courts); and failure to secure the authorization of the person who should have authorized the marriage (i.e. lack of authorization of guardians of a mentally challenged spouse)

Multiple annulments

Henry VIII of England had three of his six marriages annulled.^{[45][46][47][48]} These marriages were to Catherine of Aragon (on the grounds that she had already been married to his brother—although this annulment is not recognized by the Catholic Church); Anne Boleyn^[48] (on the grounds that she had allegedly seduced him with witchcraft and was unfaithful—not wishing to execute his legal wife, he offered her an easy death if she would agree to an annulment); and Anne of Cleves^[49] (on the grounds of non-consummation of the marriage and the fact that she had previously been engaged to someone else). Catherine Howard never had her marriage annulled. She had committed adultery with Thomas Culpeper during the marriage, and she had flirted with members of his court. Because of this, on November 22, 1541, it was proclaimed at Hampton Court that she had "forfeited the honour and title of Queen," and was from then on to be known only as the Lady Catherine Howard. Under this title she was executed for high treason three months later.^[50]

Controversies

The grounds of annulment in regard to a voidable marriage, and indeed the concept of a voidable marriage itself, have become controversial in recent years. According to a paper in Singapore Academy of Law Journal:^[51]

"Where divorce is available to all, it seems somewhat inconsistent to favour some groups of unhappily married people by giving them the privilege of choosing whether to put an end to their misery by way of annulment or by way of divorce. It is also worthy of note that some judges, like Coomaraswamy J. in Chua Ai Hwa (mw), have noted that some of the grounds making a marriage voidable have tended to be abused by parties who hope the court will grant the petition on fairly skimpy evidence simply because the petition is not defended."

See also

• Void marriage
• Alimony
• Catholic marriage theology
• Divorce
• Nullity (conflict) for a discussion of the rules relating to the annulment of marriage (conflict) in the Conflict of Laws
• Separation

Notes

External links

Look up annulment in Wiktionary, the free dictionary.

• Catholic Encyclopedia "Canonical Impediments"
• Catholic Encyclopedia "Validation of Marriage"
• New York State Domestic Relations Law, Article 9