Someone who is going through a divorce in California might sometimes wonder whether an annulment is a viable option instead. This blog post goes over the two types of annulment available under California law. I’m going to cite to sections of the California Family Code wherever I can so you can go look up the statute sections yourself, if you’re so inclined.
The first type of annulment in California is for a void marriage. This is when the marriage is void or illegal from its inception. In other words, the marriage in question never existed because it was illegal from the start. Two common reasons for a void marriage are (1) incest under California Family Code section 2200 , and (2) certain kinds of bigamy under California Family Code section 2201. There are other reasons why a marriage might be void. If you have doubts as to whether your marriage might be void, please contact an attorney.
Only certain types of bigamy will make a marriage void. Under California Family Code section 2201(a)(2), a bigamous marriage is not void, but only voidable (see next paragraph) if the former spouse of one of the parties is (a) generally believed to be deceased, or (b) not known to be alive for the immediately preceding five years.
As an example, suppose A and B get married, but split up after a few years. A and B live apart, but neither actually goes through the process to get divorced. A then moves in with C and they want to get married. If B is known to be alive, then the A-C marriage would be void because A is still married to B. However, if A has no idea whether B is alive or not during the 5 years immediately before the A-C marriage, then the A-C marriage would be voidable. Similarly, if B was generally believed to be dead at the time A and C got married, then the A-C marriage would be voidable.
The second type of annulment in California is for a voidable marriage. A voidable marriage is different from a void marriage in that a void marriage is illegal from the outset and never existed while a voidable marriage exists as a legal marriage until it is declared invalid at a later date by a court with ability to do so. The various subsections of California Family Code section 2210 go over the reasons why a marriage might be found voidable. These grounds are also listed in section 5 of the standard divorce petition form (California Judicial Council Form FL-100) used in all California divorces.
Many of these reasons listed under California Family Code section 2210 contain an “unless” provision, meaning that the reason will make a marriage voidable unless the spouse who could seek to void the marriage accepts or waives the defect. For example, one reason why a marriage might be voidable is if one of the spouses was under the age of lawful consent and did not obtain the consent of their parents prior to marriage. However, under California Family Code section 2210(a), being underage at the time of marriage can be waived if, after reaching the age of majority (e.g. 18), the two spouses freely cohabitate with one another as spouses.
Of the four reasons listed on the FL-100 Petition form (i.e. unsound mind, fraud, force, physical incapacity), a common question is what constitutes sufficient fraud to make a marriage voidable. In general, fraud is defined as a knowing misrepresentation of material fact made to induce reliance. In the marriage context in California, there is a 2005 case called Marriage of Meagher & Maleki (2005) 131 Cal. App. 4th, 1, 3 that provides a lot of guidance here:
- The fraud must be extreme and go to the very essence of the marriage relationship;
- The alleged misrepresentation must have been vital to the relationship and directly affecting the purpose of the deceived party in consenting to the marriage in the first place. In practice, this essentially means the fraud must relate in some way to the sexual, procreative, or child-rearing aspects of the marriage. Cases involving undisclosed sterility or an inability or unwillingness to have sex can qualify as fraud.
- Cases where one spouse enters in to the marriage solely to obtain permanent residency in the United States (i.e. an immigration green card) without disclosing this to the other spouse have qualified as well. Marriage of Liu (1987) 197 Cal. App. 3d, 143, 156.
Fraud relating to finances (e.g. spouse was actually not rich, spouse hid a spending problem, etc) or personal habits (e.g. undisclosed drinking problem, unwillingness to get a job, etc) generally do not qualify. In the words of one court, an annulment cannot rest solely on the fact one spouse “turned from a prince in to a frog”. Marriage of Johnston (1993) 18 Cal.App.4th 49, 500-502.
In my experience, people believe that an annulment is available in more instances than it actually is. That is not to say, of course, that an annulment is unavailable in your particular case. This blog post is intended to be very general in nature and provide basic, superficial information regarding annulments in California. I — literally — have no idea about your situation. If you find yourself in a situation where you are contemplating an annulment, the only way to know for sure whether it is a viable option is to find a lawyer in your area to discuss your case.
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