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.[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, 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]

Christianity[edit]

Anglicanism[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."[7] Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.[7]

Catholicism[edit]

Scale of justice
Part of a series on the
Jurisprudence of
Catholic canon law

In the canon law of the Catholic Church, an annulment is properly called a "Declaration of Nullity", because according to Catholic doctrine, 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 "Declaration of Nullity" is not dissolution of a marriage, but merely the legal finding that a valid marriage was never contracted. This 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.

The Roman Pontiff may dispense from a marriage ratum sed non consummatum since, having been ratified (ratum) but not consummated (sed non consummatum), it is not absolutely unbreakable. A valid natural marriage is not regarded as a sacrament, however, if at least one of the parties is not baptized. In certain circumstances it can be dissolved 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]

Certain conditions are necessary for the marriage contract to be valid in canon law. Lack of any of these conditions makes a marriage invalid and constitutes legal grounds for a declaration of nullity. Accordingly, apart from the question of diriment impediments dealt with below, there is a fourfold classification of contractual defects: defect of form, defect of contract, defect of willingness, defect of capacity. For annulment, proof is required of the existence of one of these defects, since canon law presumes all marriages are valid until proven otherwise.[12]

Canon law stipulates canonical impediments to marriage. A diriment impediment prevents a marriage from being validly contracted at all and renders the union a putative marriage, while a prohibitory impediment renders a marriage valid but not licit. The union resulting is called a putative marriage. An invalid marriage may be subsequently convalidated, either by simple convalidation (renewal of consent that replaces invalid consent) or by sanatio in radice ("healing in the root", the retroactive dispensation from a diriment impediment). Some impediments may be dispensed from, while those de jure divino (of divine law) may not be dispensed.

In some countries, such as Italy, in which Catholic Church marriages are automatically transcribed to the civil records, a Church declaration of nullity may be granted the exequatur and treated as the equivalent of a civil divorce.

Methodism[edit]

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.[13]

Islam[edit]

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

A man does not need grounds to divorce his wife in Islam. To divorce, he can simply invoke Talaq and part with the dower he gave her before marriage; or, he can invoke Lian doctrine in case of adultery, by bringing four witnesses who saw the wife committing adultery (which is almost impossible) or by self-certify and swear by Allah four times, and Sharia requires the court to grant divorce requested by the man.[3][14]

Also, Sharia does grant a Muslim woman simple ways to end her marital relationship and without declaring the reason. Faskh or (kholo) (annulment) doctrine specifies certain situations when a Sharia court can grant her request and annul the marriage.[3][not specific enough to verify]

Grounds for Faskh are:[3][15] (a) irregular marriage (fasid),[16] (b) forbidden marriage (batil),[17] (c) the marriage was contracted by non-Muslim husband who adopted Islam after marriage,[citation needed][18] (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.[14]

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,[15] acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.[citation needed]

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.).[15] 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.[19][not specific enough to verify]

United States[edit]

State of New York[edit]

Main article: New York divorce law

New York law provides for: Incestuous and void marriages (DRL §5); Void marriages (DRL §6) Voidable marriages (DRL §7).[20]

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.

State of Nevada[edit]

In Nevada, the qualifications for annulment[21] 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.

England and Wales[edit]

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.[22]

Australia[edit]

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.[23]

If the decree of nullity is granted by the Court, it is effective immediately.[24]

A marriage is void if:[25][26][27]

  • 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.

To be eligible to apply for a decree of nullity in Australia to effect an annulment of marriage, at least one of the parties must either: be an Australian citizen live in Australia and consider Australia to be their permanent home, or ordinarily live in Australia and have done so for at least 12 months before the application.[28]

An application for a decree of nullity must be filed using an Initiating Application form. Three copies of the completed Initiating Application form must be filed, with a copy of the marriage certificate and an affidavit stating the facts relied on for the annulment of the marriage, and details of the kind of marriage ceremony that was performed. There is a filing fee for an application for a decree of nullity which is currently $1,195.00. In some cases a reduced fee may be sought if the party filing the application holds certain government concession cards or can demonstrate financial hardship.[29]

France[edit]

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.[30] (see articles 180 to 202, and articles 144, 145, 146, 146-1, 147, 148, 161, 162, 163, and 164 of the French 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[edit]

Henry VIII of England had three of his six marriages annulled.[31][32][33][34] 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[34] (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[35] (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.[36]

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:[37]

"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. ^ a b https://www.gov.uk/how-to-annul-marriage/when-you-can-annul-a-marriage
  6. ^ http://ubplj.org/index.php/dlj/article/view/935
  7. ^ a b Kertzer, David I.; Barbagli, Marzio (2002). The History of the European Family: Family life in the long nineteenth century (1789-1913). Yale University Press. p. 116. ISBN 9780300090901. 
  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. ^ Code of Canon Law, canon 1060
  13. ^ Marsh, Clive (10 May 2006). Methodist Theology Today. Bloomsbury Academic. p. 126. ISBN 9780826481047. 
  14. ^ 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
  15. ^ 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
  16. ^ For example, a marriage when the Muslim woman was observing Iddah or Ihram
  17. ^ 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)
  18. ^ Quran forbids marriage of Muslim woman to a Christian, Jew, Hindu, Buddhist, Atheist or other non-Muslim man, Quran 2:221
  19. ^ Peters & De Vries (1976), Apostasy in Islam, Die Welt des Islams, Vol. 17, Issue 1/4, pp 1-25
  20. ^ http://codes.lp.findlaw.com/nycode/DOM/2
  21. ^ Nevada Annulment Qualifications
  22. ^ http://www.legislation.gov.uk/ukpga/1973/18
  23. ^ Dickey, A. (2007) Family Law (5th Ed)
  24. ^ "Annulment of Marriage | Family and Divorce Lawyers". www.gotocourt.com.au. Retrieved 2016-09-23. 
  25. ^ http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Court+of+Australia+publications/FCOA_Applying_decree_nullity
  26. ^ http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb0dce4113da6ec/FSAppNullity_010113V1.pdf
  27. ^ http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch26_family_law.pdf
  28. ^ "Annulment of Marriage | Family and Divorce Lawyers". www.gotocourt.com.au. Retrieved 2016-09-23. 
  29. ^ "Annulment of Marriage | Family and Divorce Lawyers". www.gotocourt.com.au. Retrieved 2016-09-23. 
  30. ^ http://legifrance.gouv.fr/affichCode.do;jsessionid=F1A5BA892CEFC6A062850AF3A899FBB9.tpdila07v_1?cidTexte=LEGITEXT000006070721&dateTexte=20150324
  31. ^ "The Trial of Sir Thomas More: A Chronology". University of Missouri-Kansas City School of Law. Retrieved 2007-05-31. 
  32. ^ Anne of Cleves: Biography, Portraits, Primary Sources
  33. ^ About Anne of Cleves
  34. ^ a b Anne Boleyn
  35. ^ Anne of Cleves
  36. ^ The Politics of Marriage: Henry VIII and his Queens. - book reviews Contemporary Review, Jan, 1995 by Michael L. Nash
  37. ^ http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/100/1993-5%282%29-SAcLJ-290-Leong.pdf

External links[edit]