New York Annulments
Void and Voidable Marriages
Domestic Relations Law Sections 5, 6, 7, 140.
By J. Douglas Barics
An annulment is a matrimonial action to declare a marriage as null and void.
There are two classifications of marriages which may be subject to an annulment, void marriages, which are void at their inception (void ad ignition), and voidable marriages, which can be voided only by a court judgment.
The grounds for an annulment are contained in Domestic Relations Law Sections 5, 6, and 7, with DRL 140 providing additional factors for some of the grounds.
For all annulments, the standard of proof required is much higher than that of a divorce; Domestic Relations Law 144 requires that evidence to be corroborated. For an uncontested annulment, this corroboration may be accomplished by an affidavit.
For all annulments, the record of the marriage itself remains on record, as does the annulment. Moreover, despite an annulment function in voiding a marriage, any children born during an annulled marriage are legitimate. In addition, the court is authorized to make every other award that is available in a divorce action, including custody, child support, maintenance, equitable distribution, and awards of attorney and expert fees when there is financial disparity between the parties.
1. VOID MARRIAGES
Void marriages are those marriages which can never be legitimized. Nor do they technically need to be annulled as they are not valid marriages, although it is wise to do so.
(a) Incestuous and void marriages: DRL 5
An incestuous marriage is defined as one between an ancestor and a descendant (i.e. father-daughter, mother-son), a brother and sister, and an uncle and niece or an aunt and nephew. There are no defenses to an incestuous marriage entered into in New York, if the claim is true, the marriage is void.
However, New York may recognize such a marriage if the marriage was valid in the state where it took place, provided that the relationship is not too close, and based on the specific facts of the case.
(b) Former spouse still living: DRL 6
When a prior spouse is living and the marriage has not been dissolved, any subsequent marriage is void. DRL 6, DRL 140(a).
Domestic Relations Law 6(1) reference to why the marriage was dissolved is a holdover from pre 1965 laws, which used to contain restrictions on remarriage following a divorce based on adultery. This provision has no effect whatsoever under current law.
New York will not recognize a bigamous marriage under any circumstances.
DRL 140 allows the following parties to bring an action to declare a marriage void – husband and wife, during their lifetime of the other spouse, or by a former spouse.
(c) A marriage which was solemnized by someone other that a person authorized under DRL 11.
Any marriage not solemnized by someone listed DRL 11 shall not be valid.
2. VOIDABLE MARRIAGES
Voidable marriages not automatically void, and a court judgment is necessary to have them void. A void marriage here is void from the date of the judgment of the nullity, not from the date of the marriage. Courts may also deny the request to have the marriage voided, and rule that the marriage should continue.
(a) Under age of consent DRL 7(1)
The age of consent to marry in New York is eighteen. Under eighteen, written consent of both parents (if living) is required. Under sixteen, parental consent and a judge's approval is necessary as well. No person fourteen or younger may marry, see DRL 15-a.
If a party is under the age of eighteen, the underage party, either parent of the underage party, or the under age party's guardian or next friend, may seek to have the marriage annulled. It is the court's discretion whether to grant an annulment, taking into account all the facts and circumstances surrounding such marriage. DRL 7(1) and DRL 140(b).
The right to seek an annulment under DRL 7(1) terminates at age eighteen.
(b) Incapable of consenting for want of understanding DRL 7(2)
In an action brought under DRL 7(2), the court will determine if a party to the marriage was capable of fully understanding the nature of the marital relationship and its consequences. If no relative is available to act on behalf of the spouse alleged to be mentally deficient, the court may allow a non relative to do so as the "next friend"
1. Mental Retardation
An action under this section based on mental retardation may be brought during the lifetime of either spouse, or by any relative of the mentally retarded spouse who has an interest in annulling the marriage.
2. Mental Illness
An action based on mental illness may be brought while the spouse is mentally ill, after the death of the mentally ill spouse but prior to the death of the surviving spouse. The mentally ill spouse may commence an action when the illness has been cured provided they don't cohabit after sanity is restored, which would ratify the marriage.
The spouse who is not mentally ill may file as well if four conditions are met. (1) the other spouse was mentally ill at the time of the marriage, (2) the non ill spouse was not aware of that illness, (3) the action was brought as soon as the non ill spouse learned of the mental illness, and (4) the mental illness is present when the annulment is prosecuted.
(c) Incapable of entering into married state from physical cause DRL 7(3)
The inability to have sexual relations will be a grounds for an annulment if the condition is incurable, excluding speculative or potentially dangerous cures. Mere sterility will not suffice either.
Either party may seek an annulment under DRL 7(3) pursuant to DRL 140(d). If the incapable party files, they will have to show they were unaware of the condition, or if they were aware, did not know it was incurable.
An annulment action under DRL 7(3) must be filed within five years. Since the five year rule is part of the statutory ground, it must be plead and proven and failure to do so will result in the annulment being denied. Contrast this with an affirmative defense asserted under CPLR 3018 which must be plead or is waived.
There is no right to a jury trial on this ground. DRL 143 specifically excludes this right.
(d) Consent to such marriage by reason of force, duress or fraud DRL 7(4)
Since marriage is a social contract, both parties must knowingly consent to the marriage of their own free will. The marriage may be annulled as void if either party consents as the result of duress, force, or fraud.
An action under DRL 7(4) may be brought by the party, a parent of the party, a relative of the party who has an interest in annulling the marriage. The action may be brought during the lifetime of the offending party. If the action is brought by a parent or family members, both spouses are necessary parties to the annulment.
For duress or force, the annulment may be brought at any time. The duress or force must be shown to have deprived the exercise of free will. If consent was necessary for the marriage, the parent or guardian who gave consent has a right to seek an annulment if the consent was given under duress or force.
When fraud is alleged, the action must be brought within three years of the discovery of the fraud. It must be shown that the fraud would have deceived an ordinarily prudent person, and that the consent was given due to the fraud. If the party alleging fraud failed to act prudently, the annulment will be denied.
If the parties cohabit after the time of duress or force, or after the discovery of the fraud, no annulment will be given, as the marriage will be deemed ratified. In order to prevail in an annulment under DRL 7(4), the injured spouse must immediately cease cohabiting with the other party.
(e) Incurable mental illness for five years or more. DRL 7(5)
This ground authorizes an annulment to be granted if one spouse develops an incurable mental illness for five years or more. The mental illness can develop after the marriage, as contrasted with DRL 7(2) which requires the mental disability to be present at the time of marriage. The illness must be in existence for at least five years, any lesser time will not suffice.
The action may be brought by either spouse or on behalf of either spouse.
Under DRL 141, the court is authorized to award support to the mentally ill spouse, including a claim against the estate of the supporting spouse.
Given the onerous requirements of proof, coupled with the prospect of potentially devastating financial burdens being placed on the supporting spouse, very few annulments are filed on this ground.
The article "New York Annulments: Void and Voidable Marriages" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.