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There are many different grounds for annulment. The length of the parties' marriage is not generally relevant as to whether or not an annulment will be granted. The pivotal question is whether the marriage is void or voidable.

A marriage is void (depending on the state) if (i) either of you is already married to someone else and the other did not know, or (ii) you have married a close relative (incest).

A marriage may be voidable (depending on the state) if (i) one of the spouses didn't have the mental capacity to consent to the marriage at the time, (ii) one of the spouses is not physically capable of sexual intercourse, (iii) one of the spouses wasn't old enough to get married, or (iv) there was fraud or duress involved in getting married.

To prove that a person was under duress or forced into a marriage (as a basis for an annulment) there must be a wrongful act or unlawful threat which overcomes the will of a person.

Example: A person that threatens to injure another person unless they marry them is acting wrongfully. If they are in such fear of great bodily harm that they feel they must marry them, then their free will is "overcome" and the marriage may be annulled.

Sidebar: If the party seeking the annulment is voluntarily living with their spouse, they cannot claim duress or force. They will have to obtain a divorce instead.

Sidebar: If you were forced into a marriage yet decided to stay and live with your spouse, you have ratified the marriage and it cannot be annulled on the grounds of duress.

My elderly grandfather's girlfriend convinced him to marry her. Can I have the marriage annulled on the grounds of duress?

No. Duress or force must be proved by clear and convincing evidence. Unless you have facts that tend to show your grandfather was threatened or his girlfriend committed a wrongful act, duress is not a ground for annulment.

TIP: Persuasion or pressure is not duress.

My girlfriend's mother threatened to go the police and file charges of statutory rape unless I married my girlfriend. Can the marriage be annulled on the grounds of duress?

No. If you had the opportunity to consult with an attorney after the mother's threat and before the marriage, you could have received some guidance and avoided the marriage. In other words, you were not being compelled against your will to marry her. Additionally, the mother's threat is not unlawful if your girlfriend was underage and the two of you engaged in sexual relations.

I'm pregnant and told my boyfriend that the baby was his child in order to get him to marry me. Can he get our marriage annulled on the grounds that I used duress and forced him to marry me?

No. Because of your lie, your boyfriend may have felt he had a moral duty to marry you, but he was not forced to marry you. Your statement was untruthful, but it was not necessarily unlawful.

Capacity

The more common ground for annulment is lack of legal capacity to marry. Lack of capacity comes in many forms, including:

  • age - persons who are under the legally required age and who are marrying without the consent of their parents do not have the capacity to legally marry.
  • current marriage - persons who are married to someone else when they marry again do not have the capacity to enter into another marriage.

TIP: Remarriage after divorce cannot occur until after a certain time period (typically 30 days depending on the state). A person who marries before the waiting period does not have the capacity to marry and an annulment can be obtained by the spouse who was unaware of the divorce.

  • blood relationship - immediate family members may not marry one another (parents, grandparents, siblings, aunts and uncles). The marriage is illegal and an annulment can be obtained at any time.
  • mental incapacity - a person who has a mental defect which makes him incapable of consenting to marriage or understanding the nature of marriage can obtain an annulment.

Sidebar: Mental incapacity to marry takes two forms. The person who cannot consent suffers from such an extreme mental disease or defect that his guardian must file for the annulment on his behalf.

On the other hand, a person can suffer from a mental defect at the time of the marriage only and later return to his normal state of awareness. For example, if you can show that you were unaware of your mental illness at the time of your marriage, you can request an annulment from the court. Some laws refer to this ground as "temporary insanity." This is similar to seeking an annulment because of intoxication at the time the marriage took place.

  • intoxication - couples that marry when one or both of them are under the influence of alcohol or drugs can obtain an annulment as long as they did not live together after the intoxicating effects wore off.

My parent has Alzheimer's disease. Can their recent marriage be annulled?

Yes. If the disease has progressed to the extent that their physicians believe that, at the time of the marriage, they were no longer able to properly care for themselves, that their memory was failing and that they was becoming unaware of their surroundings, then your parent did not have the mental capacity to marry.

My sibling has Down's syndrome. Can their marriage be annulled on the grounds of mental incapacity?

No. The fact that they have Down's syndrome does not automatically make them mentally incapable of entering into a marriage. Unless you can show that they did not understand that they were getting married and the consequences of marriage, mental incapacity is not a ground for annulling the marriage.

My child has been hospitalized many times for mental illness, is under the care of a psychiatrist and I am their court-appointed guardian. Are there grounds for annulling their recent marriage?

Yes. If you were able to obtain a guardianship based on their incompetency, then your child does not have the mental capacity to consent to marriage and you can seek an annulment.

TIP: To serve as a basis for an annulment, the mental incapacity must exist at the time the marriage took place. Prior or subsequent mental illness is not a valid basis.

During a state of deep depression, I agreed to marry my partner. I'm now on anti-depressant medication and realize I made a terrible mistake. Can I have the marriage annulled?

Yes. If you did not know you were chronically depressed or have reason to believe that you were, the marriage can be annulled on the basis of your mental incapacity at the time of the marriage.

TIP: If you allege mental incapacity at the time of the marriage, you cannot have voluntarily lived with your spouse since you have recovered your mental faculties.

How intoxicated do I have to have been at the ceremony to have a marriage annulled?

You must have been so intoxicated at the ceremony that you were incapable of understanding that a marriage took place.

Sidebar: The courts often look for evidence of intoxication in the events that occurred after the marriage. For example, a person who wakes up the next day without any memory of where they are or that they got married can obtain an annulment. A person who was in a "drunken stupor" when he got married is intoxicated enough to receive an annulment. Additionally, attempts by the person to immediately investigate, rectify and "cancel" (calling a lawyer, for instance) the marriage indicate that they were so intoxicated that they were not capable of deciding to enter into a marriage.

Fraud

In order to establish fraud as basis for annulment, there must be a:

  • a false representation made by the spouse;
  • that is material to the marriage;
  • to induce a marriage;
  • which the other spouse relied on as the truth; and,
  • acted on by entering into the marriage.

The person making the representation must know that his representation is false. For example, there is no fraud if a person promises to have children but did not know they were sterile or infertile.

Additionally, the statement has to be made with the intent to get the other person to enter into a marriage. A person's false statement about their wish to have children is not fraudulent unless they made it with the intent to convince a another person to marry they. False statements that are made on a date or in casual conversation cannot be later characterized as fraud. However, that same false statement made during premarital counselling is fraudulent.

False statements that are not material to a marriage, i.e. that do not go to the heart of the marriage, are not fraudulent. For instance, claims of famous ancestors, a college education that does not exist, or even lack of sexual experience do not impact the core of a marriage.

My spouse did not tell me before we got married 5 years ago that they had been married and divorced several times. Can I have our marriage annulled on the grounds of fraud?

No. Annulments are typically not granted on the basis of fraud when you have lived with your spouse for some time and consummated the relationship. You might have obtained an annulment when you first married, but at this point a court would be reluctant to find that prior marriages are enough to declare that your marriage never existed.

My spouse married me when they were still married to someone else. My spouse's prior spouse has since died, some years after my discovery. Can I get an annulment?

No. If you continued to live with your spouse as a married couple after the first spouse's death, then your marriage is no longer subject to annulment. By continuing to live with your spouse, your void marriage "ripened."

Sidebar: In some states, void marriages, i.e., marriages that can be annulled, can be converted into common law marriages that must be dissolved by divorce. For example, while it is possible to obtain an annulment at 17 years of age, once the spouse turns 18, they must file for divorce.

I work overseas and my spouse married me with the understanding that they would live overseas with me. They have since decided to move back to the United States. Can I have our marriage annulled because of fraud?

No. Your spouse's decision to return home is not fraudulent unless you can prove that, at the time of your marriage, they married you with no intention of living overseas. Their later decision to live in the United States rather than overseas is not grounds for an annulment.

I'm a physician and my spouse promised to do all the housework, cooking and shopping because they work from home. Can I get an annulment now that they refuse to do any of the things they promised?

No. Although your spouse broke their promises, failure to do as they said does not amount to fraud.

Sidebar: Fraud, when used as grounds for an annulment, must go to the "heart" of the marriage. For example, a spouse's agreement before marriage to have children and a later refusal, go the heart or essence of a marriage so that they have committed fraud. Failing to do chores or pay bills are not acts of fraud.

My spouse did not tell me that they were an alcoholic before our marriage. Can I get an annulment because they concealed their alcoholism?

No. Unlike drug addiction, your spouse's alcoholism is not a crime, and concealment of their problem is not fraud. You must seek a divorce instead.

Sidebar: Courts do not grant annulments merely because a person fails to disclose their bad temper, extravagant or miserly spending, drinking habits, bad hygiene, or other unattractive and annoying traits.

My spouse concealed the fact that they have a debilitating disease when we married. Can I obtain an annulment?

Yes. Your spouse's disease has increased your duties to them as a spouse without any prior knowledge on your part. This failure to tell you about the disease goes to the heart of the marriage, and they defrauded you. Household income and expenses, your ability to be employed full-time, and ability to take care of your children have been directly affected by the disease which they concealed.

Sidebar: Fraud is only available as a ground for annulment to the innocent spouse. Once the innocent spouse learns of the fraud, they must cease cohabitating with the spouse. If they continue to live with them, they are no longer an innocent spouse because they are now aware of the nature and facts of the fraud.

My spouse married me with no intention of consummating the marriage. Is this ground for an annulment?

Yes. Your spouse deceived you regarding a basic part of marriage. You can obtain an annulment because of the refusal to consummate the marriage.

TIP: Concealment or misrepresentation of religious views can be usually a ground for annulment.

Untimely Marriage

Some state laws prohibit marriage within a certain time period (72 hours in some states) after a marriage license was issued. Annulment on these grounds permits parties who have married hurriedly and without thought, but who have no other grounds, to obtain an annulment rather than a divorce. A request for annulment based on untimeliness typically is required to be filed within 30 days of the marriage.

TIP: Marrying before the waiting period is up does not automatically invalidate your marriage.

The marriage can also be annulled for untimeliness if one of the parties married within the waiting period after a divorce is granted (typically 30 days) and the new spouse was unaware of the recent divorce.

TIP: Concealed divorce, as a basis for an annulment, must be alleged within a year after the marriage ceremony. After a year, it is assumed that the new spouse became aware of the divorce at some point in time.

Impotency

If a person was permanently impotent (for physical or mental reasons) at the time of the marriage and their spouse was unaware of the impotency, an annulment will be granted. The spouses cannot have lived together once the impotency was discovered. A couple that continues to cohabit after discovery of impotency will have to seek a divorce instead of an annulment.

Desertion

Desertion is not a ground for annulment unless the spouse abandoned the marriage immediately after it occurred. For instance, a spouse's desertion after a year of marriage is a ground for divorce rather than annulment. However, in the situation where a someone abandoned their spouse immediately after the marriage took place, an annulment may be sought on the basis of fraud since it appears they never intended to live with the abandoned spouse.