By: Akanksha A. Panicker
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.
[1.1] WHAT IS ANNULMENT
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
- Defect of the form: If the marriage ceremony is invalid
- 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.
- 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”.
- 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 a legitimate marriage. 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, 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.
[2.1] WHAT IS LEGAL SEPARATION
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.
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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