Annulment (Nullity) Of Marriage
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General Information Re
Nullity (Annulment) Of Marriage Or Domestic Partnership In California
Petitioning for a judgment of nullity (rather than marriage
dissolution) is appropriate where the validity of the marriage
is in doubt.
Marital dissolution (divorce) and nullity of a marriage are
premised on completely different assumptions:
A dissolution action is maintained to terminate a valid
marriage on grounds arising after the marriage (Ca Fam §
A nullity proceeding is maintained 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; Ca Fam § 2200 et seq.).
In other words, whereas a dissolution action seeks to terminate
marital status, a nullity action seeks to inquire whether
any such status ever existed.
A marriage may be invalid from its inception either because
of irregularities in statutory formalization procedures (ordinarily,
license, solemnization and authentication; (Ca Fam § 306)
or because of other legal impediments that, notwithstanding
proper formalization, render the marriage void or voidable (incestuous,
bigamous, induced by fraud or force, party under age of consent,
etc.; (Ca Fam §§ 2200, 2201, 2210).
General 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, to which the consent of the parties capable of making that contract is necessary." [Ca Fam § 300] But the parties' consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Ca Fam § 350 et seq.), solemnization (Ca Fam § 400 et seq.) and authentication (Ca Fam §§ 422-425); and the "certificate of registry of marriage shall be returned" (Ca Fam §§ 359 & 360 (emphasis added)). [Ca Fam §§ 300, 306] California has abolished the concept of "common law marriage." A valid marriage cannot be created in California solely by the parties' consent or mere cohabitation. [Ca Fam § 300]
"Void" vs. "Voidable"
Marriages And Domestic Partnerships
A void marriage or domestic partnership (Ca Fam §§
2200-2201) is invalid and a nullity from its inception. It never
A voidable marriage or domestic partnership (Ca Fam §
2210) is valid for all civil purposes between the parties and
against the world until adjudged a nullity; i.e., the marriage
or domestic partnership is invalidated only from the time it
is so declared by a court of competent jurisdiction. Moreover,
with the passage of time, a voidable marriage or domestic partnership
may, for all practical purposes, become valid (nonvoidable)
because a proceeding to annul a voidable marriage/domestic partnership
must be commenced within statutorily-prescribed time limits.
[Ca Fam § 2211] Once the applicable statutory period expires,
a judicial termination of marital/domestic partnership status
and adjudication of the bundle of rights and responsibilities
incident thereto must proceed by an ordinary dissolution.
Basis For Judicial Determination
Of Nullity Where Marriage Or Domestic Partnership Is "Void"
An alleged marriage or domestic partnership may be adjudged
a nullity as "void" pursuant to Ca Fam §§
2200 or 2201 or if otherwise invalid from its inception as follows:
Incest: A marriage or domestic partnership
between parents and children, ancestors and descendants of every
degree, brothers and sisters (of the half or whole blood), or
uncles and nieces or aunts and nephews is incestuous and void
from the beginning, "whether the relationship is legitimate
or illegitimate." [Ca Fam § 2200]
Bigamy: A subsequent marriage or domestic
partnership is illegal and void from the beginning if either
party has a spouse or domestic partner still living unless the
former marriage/domestic partnership was dissolved or adjudged
a nullity before the date of the subsequent marriage/domestic
partnership. [Ca Fam § 2201(a)(1)]
Exception: A subsequent marriage or domestic partnership
when a party has a spouse or domestic partner still living
is only voidable (valid until adjudged a nullity pursuant
to § 2210(b)) where, at the time of the subsequent marriage
or domestic partnership, the former spouse/domestic partner
(a) has been absent, and not known to be living for five successive
years immediately preceding the subsequent marriage/domestic
partnership, or (b) "generally reputed" or believed
to be dead. [Ca Fam § 2201(a)(2) & (b)]
Marriage/Domestic Partnership Not Lawfully Contracted: Sections 2200 and 2201 (above) do not state the exclusive grounds
for invalidating a marriage or domestic partnership as "void."
A marriage or domestic partnership ostensibly contracted in
accordance with California law is also invalid from its inception
and thus void if the parties failed to comply with the Ca Fam
§§ 300 and 306 requirements for a valid marriage or
the Ca Fam § 297 requirements for a valid domestic partnership).
Basis For Nullity Where
Marriage Or Domestic Partnership Is "Voidable"
Minority Of A Party: The party who commences
the nullity proceeding (or on whose behalf it is commenced)
was under the age of lawful consent (under age 18) and did not
obtain the requisite parental/court consent unless, after attaining
age 18, the party "freely cohabited with the other as husband
and wife." [Ca Fam § 2210(a)]
Prior Existing Marriage Or Domestic Partnership:
Either party was legally married to another or a member of another
domestic partnership, but the subsequent marriage or domestic
partnership is not illegal and void because within the §
2210(b)(1) & (3) "voidability" rule (former spouse/domestic
partner absent for five years and not known to be living or
generally reputed to be dead. [Ca Fam § 2210(b)]
Unsound Mind: Either party was of "unsound
mind" (unable to understand the subject matter of the marriage/domestic
partnership contract and obligations incident thereto) unless,
"after coming to reason," he or she "freely cohabited
with the other as husband and wife." [Ca Fam § 2210(c)]
Force: Either party's consent to the marriage
or domestic partnership was obtained by "force," unless
the coerced party thereafter "freely cohabited with the
other" as husband and wife. [Ca Fam § 2210(e)]
Physical Incapacity: Either party was "physically
incapable" of entering into the marriage state (unable
to engage in normal copulation) and such incapacity continues
and appears to be "incurable." [Ca Fam § 2210(f)]
Fraud: Either party's consent to the marriage
or domestic partnership was obtained by "fraud," unless
the defrauded party thereafter, and with full knowledge of the
facts constituting the fraud, "freely cohabited with the
other" as husband and wife. [Ca Fam § 2210(d)]
The type of "fraud" sufficient to support a judgment
of nullity must go to the very essence of the marital [or domestic
partnership] relation. Thus, fraud or deceit sufficient to avoid
an ordinary contract will not necessarily warrant a judgment
of nullity. The alleged misrepresentation or concealment must
have been "vital to the relationship," directly affecting
the purpose of the deceived party in consenting to the marriage/domestic
The following are some examples of the kinds of fraud which
would warrant a nullity judgment:
As between spouses, concealment of sterility, of existing
pregnancy, or of an intent not to terminate a sexual relationship
with a "significant other" goes to the "very
essence" of the marriage relationship and thus is sufficient
ground for a judgment of nullity.
As between married persons, a concealed intent not to
live with the other spouse, not to engage in sexual relations
with the other spouse, or not to have children despite a
promise to the contrary supports a judgment of nullity on
the ground of fraud.
Wife, who was induced to marry by Husband's false representations
he was an honest, law-abiding, respectable and honorable
person and that he had a child who was well provided for,
was entitled to a judgment of nullity on the ground of fraud
where Husband had in fact been convicted of grand theft,
was a parole violator and a fugitive from justice, and was
guilty of failure to support his children from a prior marriage.
A judgment of nullity based on fraud is also warranted
where one party's motive in entering the marriage was solely
to obtain a green card (to acquire U.S. residency status)
and he or she never intended to engage in sexual relations
with the other or to meet marital duties.
On the other hand, "the concealment of incontinence, temper,
idleness, extravagance, coldness or fortune inadequate to representations
cannot be the basis for an annulment." The following are
some examples of the kinds of fraud which would NOT warrant
a nullity judgment:
A party's false representation that he or she owned a
particular business or was a "person of means"
Deceit about one's chastity or moral character is not
"vital" to the marital relationship and thus will
not justify a judgment of nullity on the basis of fraud.
Nor is there sufficient fraud to annul a marriage simply
because a party concealed a severe drinking problem (or,
presumably, drug addiction), refused to seek employment
after contracting the marriage (despite assurances before
marriage to the contrary), proved to be a "disappointing"
sexual partner, and/or turned from a "polite"
and "nice" person before marriage to a "dirty,"
"unattractive" and disrespectful person after
the marriage. A finding of § 2210(d) fraud cannot rest
solely on the fact a spouse "turned from a prince into
Valid vs. Invalid Marriage
- Substantive & Procedural Differences
Statute of limitations: A nullity cause of
action based on a voidable marriage or domestic partnership
(minority, fraud, force, etc.) is subject to a statute of limitations.
There is, of course, no "statute of limitations" on
the commencement of a marriage or domestic partnership dissolution
Minority Of A Party: A petition for nullity of a voidable
marriage/domestic partnership based on minority may be brought
The party who was under the age of consent within four
years after reaching the age of consent (Ca Fam § 2211(a)(1));
A parent, guardian, conservator or other person having
charge of the minor at any time before the married minor
reaches the age of consent (Ca Fam § 2211(a)(2)).
Prior Existing Marriage: A petition to annul a voidable
marriage or domestic partnership based on a prior existing
marriage or domestic partnership (former spouse/domestic partner
absent for five years and not known to be living or generally
reputed to be dead, may be brought by:
Either party during the life of the other (Ca Fam §
The former spouse/domestic partner (Ca Fam § 2211(b)(2)).
Unsound Mind: A nullity petition alleging voidability
on the basis of a party's "unsound mind" may be
brought by the "injured party," or by a relative
or conservator of the party of unsound mind, at any time before
the death of either party. [Ca Fam § 2211(c)]
Fraud: A petition seeking a judgment of nullity on
the ground of fraud may be brought only by the party whose
consent was obtained by fraud and within four years after
discovery of the facts constituting the fraud. [Ca Fam §
Force: An action to annul a voidable marriage or domestic
partnership on the ground of force may be brought only by
the party whose consent was obtained by force and within four
years after the marriage/domestic partnership. [Ca Fam §
Physical Incapacity: A nullity action based on physical
incapacity may be brought only by the "injured party"
and within four years after the marriage/domestic partnership.
[Ca Fam § 2211(f)]
Rights Of The Parties
On Termination Of Invalid Marriage
Parties to an "invalid" marriage or domestic partnership
generally do not have the rights and obligations granted to
and imposed upon spouses or domestic partners under the Family
But there is an important exception: A party to an invalid
marriage or domestic partnership who has "putative"
spouse or domestic partner status may be entitled to property,
support and attorney fees/costs rights similar to those attaching
upon the dissolution of a valid marriage or domestic partnership.
[Ca Fam §§ 2251, 2254, 2255] A party to a void or
voidable (or other invalid) marriage has "putative spouse"
status only if he or she believed in good faith the marriage
was valid. [Ca Fam § 2251]
A party's "good faith" belief in the validity of
the marriage is not tested by whether he or she believed a "marriage"
lawfully occurred under some private, secular or spiritual set
of standards. A putative spouse must have had a good faith belief
in the existence of a lawful California marriage (i.e., attempted
compliance with statutory requirements).
Whereas unmarried "Marvin" cohabitants have no marital
rights under the Family Code, putative spouse or domestic partner
status gives rise to cognizable Family Code property, support
and attorney fees/costs rights, as well as certain other rights
that ordinarily attach only between lawfully married persons
or lawfully registered domestic partners.
"Quasi Marital" Property: Property
that would have been community or quasi-community property
had the marriage or domestic partnership been valid is deemed
"quasi-marital property" and, in a proceeding to
terminate the invalid marriage/domestic partnership, must
be divided between the parties as if it were community property
(i.e., generally equally pursuant to Ca Fam § 2500 et
seq.). [Ca Fam § 2251(a)(2)]
Support And Attorney Fees: Temporary and/or
"permanent" spousal/partner support may be awarded
in a nullity proceeding in favor of a putative spouse/partner
"in the same manner as if the marriage [or domestic partnership]
had not been void or voidable" (i.e., pursuant to Ca
Fam §§ 3600 (temporary support) and 4320 et seq.
("permanent" support)). [Ca Fam § 2254] Also,
the court may award Ca Fam § 2030 et seq. need-based
attorney fees and costs in favor of a party found to be "innocent
of fraud or wrongdoing in inducing or entering into the marriage
[or domestic partnership], and free from knowledge of the
then existence of any prior marriage [or domestic partnership]
or other impediment to the contracting of the marriage [or
domestic partnership] for which a judgment of nullity is sought."
[Ca Fam § 2255]
Survivorship Rights: Ca Fam § 2251
"quasi-marital property" rights are triggered only
in a dissolution, legal separation or nullity proceeding under
the Family Code. The statute does not define a surviving putative
spouse's/partner's legal rights in the other party's estate
at death; rather, that is a matter of probate law.
Attorney Fees & Costs:
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