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Divorces and annulments are commonly seen as similarly situated ways to end a marriage, but they are actually quite different. An annulment differs from a divorce by essentially “erasing” the marriage in its entirety. An annulment can only be decreed when certain criteria are met, and when that criteria is met, the marriage is assumed to have never occurred. Furthermore, while some divorces need not be addressed with a legal proceeding, annulments must always be declared with a legal proceeding.


Annulments are divided into two categories, void and voidable. A void marriage simply means that the marriage was never and can never become valid. Whereas, a voidable marriage means that the marriage can become valid if an annulment is not brought within a certain amount of time.


Void Marriages

Incestuous Marriages

A marriage that occurred between an ancestor and a descendant will always be considered a void marriage. For example, marriages between father-son, father-daughter, mother-son, mother-daughter, brother-sister, aunt-nephew, aunt-niece, uncle-nephew, or uncle-niece will always be void and null. In New York, there are absolutely no defenses to incestuous marriages unless the marriage took place in a state where incestuous marriages were legal, then New York may choose to recognize the marriage based on specific facts of the case.


Bigamous Marriages

If you or your spouse also have another prior spouse that is living, and the marriage has yet to be dissolved, your marriage is void. In New York, it is illegal to be entered into more than one marriage at a time. New York State will not recognize any type of bigamous marriage under any circumstances.


Voidable Marriages

Age of Consent

The age of consent in New York is eighteen. In the event that you wish to get married before eighteen you must have written consent of both (living) parents, and if you are under the age of sixteen you will additionally need a judge’s approval. Any person who is fourteen or younger may not marry under any circumstances.


If you got married and you, or your spouse, was under the age of eighteen your marriage will be voidable. The underage party, the parents of the underage party, or a guardian of the underage party may seek to have the marriage annulled. Although, if you turn eighteen before you have the marriage annulled, your right to seek an annulment will terminate.


Incapable of Consenting

Those who suffer from mental retardation or mental illness usually do not have the capacity to consent to marriage. The court will determine each case on a fact-specific basis in order to decide if the parties to the marriage fully understood the marital relationship and its consequences. If you or a loved one suffers from mental retardation, you may bring an annulment claim during the entirety of that person’s life. Whereas, if you suffer from mental illness you may only bring the claim while you’re still suffering from mental illness.


Additionally, the spouse who is not mentally ill may file for annulment if all the below criteria are met:

  1. The other spouse was mentally ill at the time of the marriage
  2. The non-mentally ill spouse was not aware of the illness
  3. The annulment action was brought as soon as the non-mental ill spouse learned of the mental illness, and
  4. The mental illness is present when the annulment action is under court review

Furthermore, a mental illness that has developed and has been persistent for five years are more will also be grounds for a voidable marriage. Here, the mental illness may be contracted after marriage.

Incapable of Consummating the Marriage

If one spouse is incapable of having sexual relations and that condition is incurable, the marriage can be annulled. Either party may seek to annul the marriage, but if the incapable party files they have the burden of providing evidence that they were unaware of the condition or that they were unaware that the condition was incurable. This type of voidable marriage must be filed within five years of the marriage.


Consent Was on the Basis of Fraud, Duress or Force

Both parties in a marriage must willingly and knowingly consent to marriage based on their own free will. If a marriage was entered into because of fraud, duress or force, the marriage is voidable. It can be brought to court by the non-consenting party, a parent of the party, or a relative of the party who has an interest in the annulling of the marriage.


If the marriage was consented to because of duress or force, there is no time limit on when the annulment action can be brought. Whereas, if the marriage was consented to because of fraud, the annulment action must be brought within three years of discovery of the fraud. Additionally, whether the marriage happened out of fraud, duress, or force, if the parties cohabit after the time of duress, force, or fraud the annulment will not be granted.


Navigating the complex legalities surrounding an annulment can be difficult. The experienced Long Island divorce attorneys at Larry McCord & Associates, LLC can guide you through the annulment process or divorce process. Please contact Larry McCord & Associates, LLC at (631) 643-3084 to learn more about the firm’s services.

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