Undisputed Legal

It’s always difficult to end a marriage, and sometimes divorce seems like it’s insurmountable. There are multiple ways to end a marriage, however, including annulment and legal separation. This article will explore the nature of annulment as an option to end a marriage.


An annulment or a declaration of nullity basically says that the marriage was invalidly contracted and is thus treated as though it never occurred. An annulment can only be granted if the marriage was invalid in the first place. Essentially, the marriage vanishes retroactively, as if they had never been married.

Unlike popular belief, an annulment cannot be granted for a marriage that has yet to be consummated or for a marriage that has lasted for a short time alone. However, an annulment can be granted if one spouse is physically incapable of having sexual relations. When the court does pronounce an annulment, it issues an order of dissolution that divides your property and addresses issues such as child support and child custody.

New York annulment and prohibited marriage laws govern the grounds for annulment (a court ruling that the marriage was never valid in the first place), time limits for obtaining an annulment, and the various scenarios in which a marriage would not be recognized by the state.

So what are the grounds for annulment

A general rule of thumb for identifying grounds for annulment comes from identifying the defect in the marriage. These can be divided often into four categories

  1. Defect of the form: If the marriage ceremony is invalid 
  2. Defect 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. 
  3. Defect 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”.
  4. Defect of capacity: If either party were married to another and thus unable to enter into the contract.

New York follows five specific grounds for annulment. A marriage may be annulled if [A.] one or both spouses were under age 18 at the time of the marriage, or [B.] were unable to consent to the marriage due to mental incapacity or [C.]  either spouse is physically unable to have sexual intercourse or [D.] either spouse was incurably mentally ill for at least five years, or [E.] if the marriage consent was obtained by duress, coercion or fraud.

Is there a time limit for obtaining an annulment?

No, there is no time limit attached to an annulment. The logical process behind this is that if a marriage is not valid at one point in time, it cannot be held valid later. This, however, also brings in the question of what happens if both spouses are underage at the time of the marriage and whether the marriage would still be invalid once they came of age.

The annulment may be waived if the spouses continue to freely live together (cohabit) after both have reached the age of consent. In a similar vein, annulment on the grounds of mental illness is an option only if the mental illness actually persists. 

If the grounds for the annulment are a physical incapacity to consummate the marriage, an annulment is only an option within five years of the marriage, as long as the incapacity was not known at the time of marriage. 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

What are prohibited marriages?

New York does not allow marriages between ancestors and descendants, or siblings, regardless if they’re whole or half-blood. Additionally, Void and Voidable Marriages cannot be considered to be legitimate marriages. This means that if a union is bigamous/polygamous, incestuous, or performed by an unauthorized person, the marriage is immediately void and can never be recognized as valid in the state of New York, which is unlawful. This will be held to be the case regardless of the couple’s wishes. For a voidable marriage, however, one or both spouses has to ask the court to grant an annulment and have to prove they have legal grounds to nullify the marriage. 

An annulment is functionally equivalent to a divorce, but it is significantly harder to obtain an annulment in New York than a divorce. Many couples prefer divorce as it may be granted even if it’s uncontested and based on irreconcilable differences. However, at all points, the grounds for an annulment must be proven.


When the spouses in a marriage decide they want to live apart from each other but follow certain living arrangements per a voluntary, written agreement, the arrangement is called a legal separation. It’s important to note here that legal separation cannot mean merely moving out of the marital home, and will require the separation agreement. If a spouse violates the agreement, the family court can enforce it. Unlike a divorce, a legal separation does not end a marriage.

Often, a legal separation does boil down to a couple who are unsure if they want to get a divorce, or who cannot afford to get divorced or for financial benefits, such as continued health insurance. This is by no means exhaustive, and there may be a significant number of reasons for a legal separation. The terms of the separation agreement having been established, the agreement can be filed in the County Clerk’s Office with the court filing fee. 

However, if there is a disagreement between the spouses as to the separation or its terms, legal action may be initiated to ask the court to order a separation and to establish its terms.

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.


1.N.Y. Dom. Rel. Law §140(b-e); N.Y. Dom. Rel. Law §24; and 48 N.Y. Jur. 2d Domestic Relations §2441.

2. Domestic Relations Law sections 140

3. DRL 140(f) and DRL 141

4. DRL 140(b)

5. Dom. Rel. §5-7

What is an Annulment?

An annulment is granted when a marriage is voidable or void from the beginning, that is to say, there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid. Grounds for annulment are as follows: 

Fraud: It may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse, his or her parent or relative with an interest to avoid the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; concealing one’s inability to procreate, secretly carrying a disease or genetic disorder that would increase the risk of procreation; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage. 


Supreme Court

The nullification of a marriage is commonly called annulment. Annulment is the process by which a Court states that a marriage never legally existed. An annulment must be based on mental illness, fraud, forced consent, physical incapacity to consummate the marriage, lack of consent to underage marriage, or bigamy. Children of a marriage annulled for bigamy or mental illness are legitimate. In annulment cases, the court may award custody of children of the marriage and require child support and support of a party. Annulment is different from divorce.

Divorce is when the Court ends an otherwise legal marriage as of a specific date. Divorce usually involves dividing marital property and debts, setting up child custody and visitation (parenting time) schedules, and awarding child and spousal support. Divorce happens when either the husband or wife can prove the requirements or grounds to end the marriage.

Separation may mean either the date of physical separation or “legal separation,” a Judgment of Legal Separation. The act of physical separation triggers important legal consequences relating to property rights and debt liabilities. Legal separation resembles divorce in that property and debts are usually divided, and custody rights and support are awarded, but spouses are still married and cannot remarry. They may still file joint tax returns and be covered dependents on health insurance.

Annulment grounds are limited to fraud, bigamy, and insanity. There are specific legal tests to meet these criteria. Either the husband or the wife may apply to the Court for the annulment of a marriage if either party can show any of the following:

Elements for Nullification:

    1. The other spouse had another husband or wife living at the time of the marriage;
    2. Either spouse was younger than sixteen at the time of the marriage and did not have court approval;
    3. Either spouse was sixteen or seventeen at the time of the marriage and did not have parental consent, as long as the annulment action is filed within 60 days after the marriage ceremony;
    4. Either spouse was under the influence of drugs or alcohol at the time of the marriage, as long as the annulment action is filed within 60 days after the marriage ceremony;
    5. Either spouse was mentally incompetent or unable to consent at the time of the marriage;
    6. One of them was threatened or forced to get married;
    7. One of them agreed to be married based on fraudulent statements or actions by the other spouse;
    8. One of them was physically and incurably impotent at the time of the marriage unless the other spouse knew about the impotence before the marriage;
    9. Marriage is prohibited by law due to the relationship between the parties. Grounds for annulment may be set forth by statute or, in many jurisdictions, common-law grounds suffice. The specific grounds at common law are:
      1. Undisclosed prior marriage occurs when a marriage is entered into by one party still married to a third person. Many jurisdictions would allow annulment even if the party seeking the annulment knew the
      2. The person he or she was marrying had not been legally divorced or was denied the right to remarry after a divorce.
      3. Violation of divorce decree or statute barring remarriage: Some statutes prohibit remarriage after divorce or within a certain time period after divorce or remarriage to a particular person. Violation of such statutes of divorce decrees to this effect are grounds for annulment.
      4. A marriage entered into with intention that it should not be binding; mock marriage; trial marriage: The majority rule states that a party to the marriage may seek an annulment in a court of equity where the marriage results from levity, jest, no intention to bind or enter into a relationship, or no intention to assume rights or responsibilities of marriage. Annulment makes the marriage void. An agreement to enter into a trial marriage where either party by agreement has the option to annul the marriage ceremony is performed “in jest.” Where persons agree to marry to accomplish the desired objective (for example, the legitimization of a child), the majority of courts will regard the marriage as valid and will not annul on this basis.
      5. Underage of consent: The jurisdiction to annul marriages by people who are not of legal age to consent at the time of marriage is generally conferred by statute. Some courts hold these statutes applicable even where residents of the state go to another state, have the ceremony performed, and immediately return to their former residence. However, the marriage was valid where performed. Other courts hold that if the marriage were permissible under the law of the state where the ceremony was performed, it would not be annulled by courts of the parties’ domicile. Under most statutes, nonage does not itself constitute an absolute right to an annulment. The court may have discretion, and the marriage remains valid for all civil purposes until a judicial decree of annulment is issued. Where the marriage is void by statute, the court retains no discretion.
      6. Proxy marriage: Some states recognize a proxy marriage even absent statutory authority. Other states do not recognize them other than as common-law marriage when followed by cohabitation and repute. A husband in the military may annul a proxy marriage if there is no consummation, no cohabitation, or treatment as husband and wife after the marriage ceremony.
      7. Blood relationship; incestuous marriages are a marriage between:
        • parents and grandchildren,
        • grandparents and grandchildren,
        • brothers and sisters of half as well as whole blood,
        • uncles and nieces of half as well as whole blood, aunts, and nephews of half as   well as
        • whole blood, and
        • first cousins of half as well as whole blood.


A court may annul an incestuous marriage at the request of either party to the marriage even though the applicant may have knowingly entered the marriage arrangement. However, courts of one state cannot, at the suit of either party, annul a valid marriage under another state’s laws on the ground that the marriage is contrary to domicile state’s laws regarding blood relationship marriages.

      1. Mental incapacity: Courts examine whether any incapacity existed at the time of the marriage. If a court finds in the affirmative, the marriage may be annulled as void from the point of the judicial decree of nullity entered. There remains a split of authority on whether concealment of one’s mental incapacity warrants the marriage’s annulment. Where concealment does provide a ground for annulment, the following factors are considered: whether the affected spouse knew about the actual condition and its seriousness, an intent to deceive, and the absence of ratification by the innocent spouse having learned the facts.
      2. Temporary insanity: If temporary or periodic insanity is claimed, the condition at the time of marriage governs whether or not the capacity to marry was present. A marriage will not be annulled if entered into during a lucid interval. The degree of mental incapacity necessary to ground an annulment is incapacity sufficient to deprive a part of an understanding of marriage’s duties and relationship. Mere weakness of intellect remains insufficient.
      3. Intoxication: The complaining party must show intoxication at the marriage ceremony to such a degree as to render that person incapable of knowing the nature of the marriage contract and its consequences.


An action for an annulment must be started by a certain time. The time limit depends on the type of marriage. The shortest time to start an annulment is 4 years after the marriage. If you have questions about the time limit to start an annulment, seek legal assistance in your local area.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.