What is an Annulment?

What Is An Annulment?

Unlike divorce, which terminates a marriage, the purpose of an annulment is to obtain a
court order stating the parties were never legally married. A nullity of marriage or domestic
partnership can be void (not good, period) or voidable. A marriage is void if the relationship is
based on incest (California Family Code §2200) or bigamy (California Family Code §2201). A
marriage of domestic partnership is voidable if it is based on (1) petitioner’s age at the time of
marriage, (2) a prior existing marriage or domestic partnership, (3) unsound mind, (4) fraud, (5)
force or (6) physical incapacity.

Some of the advantages to obtaining an annulment of the marriage are:

-There is no minimum waiting period as there is with a divorce.
-It is not necessary to complete or serve disclosure documents.
-Spousal support cannot be ordered.

Not all judges look at annulments the same way. Some don’t seem to care one way or the
other. Some are clearly against annulments as they view them as an attempt by some to sidestep
the divorce process. While I personally think there should be an “Oops, I made a mistake.”
option, there isn’t one yet.

A number of years ago I represented a young woman who sought to have the marriage
annulled on the basis of fraud. Prior to the marriage the two agreed they would both attend
college classes and both would work, the starving married students scenario. After the
honeymoon husband told his wife he would be attending classes full-time and she would be
working full-time to support him. Not only that, when he came home from school if she was
sitting and reading he would get upset with her even if dinner was ready and the apartment clean.
That was not what she agreed to. Had she known what husband’s intentions were she would not
have married him. The husband wisely chose not to contest the matter and the judge granted the
annulment.

Fraud can also include hiding a serious criminal record, hiding illness or disease
(especially sexually transmitted diseases), or hiding lots of debt.

I recently went to court seeking an annulment for my client. We had personally served
the husband with the petition, which clearly stated wife was seeking an annulment of the
marriage based on allegations his prior marriage had not been terminated. We had also mailed a
letter to the husband notifying him of the hearing date and time. There was no response filed by
the husband and he did not appear at the hearing.

I thought it would be a slam dunk. However, notwithstanding proper notice, the court
wanted additional information. How long had she had known the husband prior to their
marriage? Did husband ever mention a wife or domestic partner? Did she ever see anything to
cause her to think there might be a wife or domestic partner? Did she ever ask her husband if he
was married to anyone else? Had my client or I searched any court records for evidence of a
divorce? (I had checked.)

I reminded the judge he had the authority as a judge to accept my client’s testimony as
evidence. I reminded the judge husband was properly served and had some responsibility to take
action if he disputed the allegations,
I expressed concern at the costs involved in having to check each of the 58 counties. I
noted to the court that while I could subpoena the husband there is no guarantee he would show
up.

Fortunately the judge believed my client and granted the petition.

In some situations annulments can provide important relief. If you think you might be
entitled to an annulment of your marriage speak with an experienced attorney, even if you do not
plan to retain one. How quick you act will be a factor in granting relief, so do not delay. In the
case above my client told her husband she was filing to end the marriage as soon as she became
aware he might still be married and had me file legal documents right away.

Robert J. Busch, Jr. is a member of the California State Bar and practices family law and
estate planning in Elk Grove, California.