Annulment

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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.

Annulments are closely associated with the Catholic Church, which does not permit divorce, teaching that marriage is a lifelong commitment which cannot be dissolved through divorce, but can be annulled if invalidly entered into.

Annulment is called faskh in Islam.[3]

Void vs voidable marriage[edit]

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, ie. 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] Same sex marriage is void in most countries, although more countries are today recognizing it.

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).

Annulment in Christianity[edit]

Anglicanism and Methodism[edit]

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."[6] Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.[6]

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.[7]

Catholicism[edit]

A Catholic 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 more like returning the property after a consummated sale.

A "Declaration of Nullity" is not a 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. As regards a marriage in which at least one of the parties is not baptized - a marriage therefore that, while being a valid natural marriage, is not a sacrament - it holds that in certain circumstances it can be dissolved (divorce) in cases of Pauline privilege[8] and Petrine privilege,[9] 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,[10] and illegitimate children are legitimized by a putative marriage of their parents, as by a valid marriage.[11]

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 also 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".[12]
  • 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.[13]

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[edit]

Main article: Canonical impediment

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:[14]

  • Age below 16 for a man, 14 for a woman[15]
  • "Antecedent and perpetual impotence to have intercourse";[16]
  • Being bound by a previous marriage;[17]
  • A baptized Catholic with regard to marrying a non-baptized person;[18]
  • Holy orders;[19]
  • A public perpetual vow of chastity in religious institute;[20]
  • Abduction of a woman with a view to marriage, unless she freely chooses marriage after being safely freed;[21]
  • 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;[22]
  • Consanguinity in the direct line or up to the fourth degree (first cousins) in the collateral;[23] 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;[24] 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;[25] also from affinity a diriment impediment arises in the direct line (ancestor or descendant of one's spouse)[23] and, for Eastern Catholics only, in the collateral line up to the second degree (sibling).[26]

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.

Annulment in Islam[edit]

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][27]

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][28]

Grounds for Faskh are:[3][29] (a) irregular marriage (fasid),[30] (b) forbidden marriage (batil),[31] (c) the marriage was contracted by non-Muslim husband who adopted Islam after marriage,[32] (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.[27]

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,[29] 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.).[29] In cases of apostasy, in addition to annulment of the marriage, the apostate may face additional penalties such as death sentence, imprisonment and civil penalities unless they repent and return to Islam.[33]

Annulment in New York State[edit]

The cause of action for annulment 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 party was still married at the time of the second marriage) cannot be annulled —it is void ab initio (not legal from its inception). However, either party (as well as certain other parties) can petition the Court with an "Action to Declare the Nullity of a Void Marriage" (DRL §140 (a)). The Court, upon 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[edit]

In Nevada, the qualifications for annulment[34] 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[edit]

England and Wales provides for both void and voidable marriages.[35]

  • Void marriage: spouses are closely related; one the spouses was under 16; one of the sposes 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.[36]

Multiple annulments[edit]

  • Henry VIII of England had three of his six marriages annulled.[37][38][39][40] 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[40] (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[41] (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.[42]

Controversies[edit]

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:[43]

"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[edit]

Notes[edit]

  1. ^ Statsky, William (1996). Statsky's Family Law: The Essentials. Delmar Cengage Learning. pp. 85–86. ISBN 1-4018-4827-3. 
  2. ^ Report on Family Law (Scot Law Com No 135, 1992): http://www.scotlawcom.gov.uk/download_file/view/446/ See paragraph 8.23."In English law a decree of nullity in respect of a voidable marriage now has prospective effect only. It operates "to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it has existed up to that time."".
  3. ^ a b c d e f John L. Esposito (2002), Women in Muslim Family Law, Syracuse University Press, ISBN 978-0815629085, pp. 33-34
  4. ^ http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
  5. ^ https://www.gov.uk/how-to-annul-marriage/when-you-can-annul-a-marriage
  6. ^ a b Kertzer, David I.; Barbagli, Marzio (2002). The History of the European Family: Family life in the long nineteenth century (1789-1913) (in English). Yale University Press. p. 116. ISBN 9780300090901. 
  7. ^ Marsh, Clive (10 May 2006). Methodist Theology Today (in English). Bloomsbury Academic. p. 126. ISBN 9780826481047. 
  8. ^ 1 Corinthians 7:10-15
  9. ^ Orlando O. Espín, James B. Nickoloff (editors), An Introductory Dictionary of Theology and Religious Studies (Liturgical Press 2007 ISBN 978-0-81465856-7), p. 1036
  10. ^ Code of Canon Law, canon 1137
  11. ^ Code of Canon Law, canon 1139
  12. ^ Annulment - Invalidity of Matrimonial Consent
  13. ^ Code of Canon Law, canon 1060
  14. ^ John P. Beal, New Commentary on the Code of Canon Law (Paulist Press 2000 ISBN 978-0-80914066-4), pp. 1282-1295
  15. ^ Code of Canon Law, canon 1083
  16. ^ Code of Canon Law, canon 1084
  17. ^ Code of Canon Law, canon 1085
  18. ^ Code of Canon Law, canon 1086
  19. ^ Code of Canon Law, canon 1087
  20. ^ Code of Canon Law, canon 1088
  21. ^ Code of Canon Law, canon 1089
  22. ^ Code of Canon Law, canon 1090
  23. ^ a b Code of Canon Law, canon 1091
  24. ^ Code of Canon Law, canon 1094
  25. ^ Code of Canon Law, canon 1093
  26. ^ Code of Canons of the Eastern Churches, canon 809 §1
  27. ^ a b J Rehman (2007), The sharia, Islamic family laws and international human rights law: Examining the theory and practice of polygamy and talaq, International Journal of Law, Policy and the Family, 21(1): 108-127
  28. ^ Honarvar (1988), Behind the veil: Women's rights in Islamic societies, The Journal of Law and Religion, Vol. 6, No. 2, 355-387
  29. ^ a b c Lynn Welchman (2000), Beyond the Code: Muslim Family and the Shari'a Judiciary in the Palestinian West Bank, Springer, ISBN 978-9041188595, pp. 311-318
  30. ^ For example, a marriage when the Muslim woman was observing Iddah or Ihram
  31. ^ For example, a married couple that is biologically related father-daughter, mother-son, sister-brother, etc - Quran 4:23; however, some fiqhs have argued exceptions. Consanguineous marriages are very common in Islamic world - Consanguineous marriages Brecia Young, Santa Fe Institute, United States (2006)
  32. ^ Quran forbids marriage of Muslim woman to a Christian, Jew, Hindu, Buddhist, Atheist or other non-Muslim man, Quran 2:221
  33. ^ Peters & De Vries (1976), Apostasy in Islam, Die Welt des Islams, Vol. 17, Issue 1/4, pp 1-25
  34. ^ Nevada Annulment Qualifications
  35. ^ https://www.gov.uk/how-to-annul-marriage/when-you-can-annul-a-marriage
  36. ^ http://www.legislation.gov.uk/ukpga/1973/18
  37. ^ "The Trial of Sir Thomas More: A Chronology". http://www.law.umkc.edu/faculty/projects/ftrials/more/morechrono.html. 
  38. ^ Anne of Cleves: Biography, Portraits, Primary Sources
  39. ^ About Anne of Cleves
  40. ^ a b Anne Boleyn
  41. ^ Anne of Cleves
  42. ^ The Politics of Marriage: Henry VIII and his Queens. - book reviews Contemporary Review, Jan, 1995 by Michael L. Nash
  43. ^ http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/100/1993-5%282%29-SAcLJ-290-Leong.pdf

External links[edit]