An annulment is the legal process by which a marriage is invalidated retroactively to the date of the inception of the marriage. An annulment differs from a divorce in that in a divorce, the couple was once “married,” and in an annulment, the court establishes that a marital status never existed.

Void marriage:
A marriage not good for any legal purpose, the invalidity of which may be maintained in any proceeding between any parties. Such a marriage is invalid from its inception, and parties thereto may separate without benefit of court order of divorce or annulment.

Voidable marriage:
A marriage which is not void when entered into and which remains valid until either party secures lawful court order dissolving the marital relationship. A voidable marriage is one where there is an imperfection which can be inquired into only during the lives of both of the parties in a proceeding to obtain a judgment declaring it void.

An annulment is the legal process by which a marriage is invalidated retroactively to the date of the inception of the marriage. Most states have statutes which set forth the grounds for annulment. In states which have not enacted such a statute, a court may, nevertheless, annul a marriage based upon its equitable powers.

Mental incapacity at the time of marriage is a ground for annulment if the afflicted party was incapable of consent. If the mental incapacity occurs after the marriage ceremony, no annulment may be granted, but a divorce may be possible.

Chart II

Differences Between Divorce and Annulment



1.? Predicated on a valid marriage.

1.? Predicated on an invalid marriage.

2.? Terminates marriage as of the date of the divorce decree.

2.? Terminates a marriage retroactively to the date of inception.

3.? Grounds arise after the marriage.

3.? Grounds exist prior to the marriage, e.g., some impediment, such as incapacity.

4.? Alimony is generally granted in a divorce action.

4.? Unless state statutes provide otherwise, alimony is not granted after issuance of the annulment decree.?

Example: Alexander and Brittany are in Las Vegas for the long Thanksgiving weekend. On a whim (plus they both had too much to drink), they decide to get married. The next day they realize their mistake and file papers to have the marriage annulled. The marriage suffered from an impediment—capacity. The marriage will be considered terminated retroactively. In addition, generally, neither party would be entitled alimony.

Generally, states will grant an annulment for the following reasons:

  • Fraud
  • Duress
  • Impotency
  • Mental incapacity

Fraud involves something that goes to the “essentials of the marriage.” Specifically, courts ask whether the marriage would have taken place without the fraud or misrepresentation.

Example: Gary marries Selena after knowing her for six weeks. Selena represents that she is chaste when in fact she is pregnant by another man. Upon learning of Selena’s condition, Gary files for an annulment. The court granted the annulment because Selena’s misrepresentation went to the essentials of the marriage. See, e.g., Reynolds v. Reynolds, 85 Mass. 605 (1862).

Other fraud-related grounds include: misrepresentations regarding fertility and religious beliefs. Conversely, misrepresentations concerning wealth, character or past life, may not be enough to invalidate a marriage.

Example: Harvey and Ellen marry each other, having represented the desire to have children. Ellen refuses to have intercourse with Harvey unless there is use of contraceptive devices. Prior to their marriage, Ellen boasted about the fact she was eager to have children right away. The court could annul this marriage.

An annulment can also be based on duress. Additionally, a marriage entered into on a whim or in jest and a sham marriage are also grounds for an annulment. For duress, the duress must have been perceived by the complaining party at the time of the marriage and must have been sufficient to prevent a party from acting freely. Duress can be through threats or application of physical force, or by threat of arrest or prosecution, and invalidates consent to marriage.

As with other actions, there are defenses to annulment:

  • Ratification: If a married couple continues to live together after one spouse learns of valid grounds for annulment; that may be considered ratification.
  • Clean hands: The equitable defense of clean hands may be asserted in some jurisdictions. The inequitable conduct or bad faith by the plaintiff may be a valid defense to the suit for annulment.
  • Statute of limitations: Many states have a statute of limitations for each specific ground upon which an annulment may be sought.

Lastly, a court may also settle the property rights of the parties and award alimony (temporary) in an annulment action. It is rarer to receive an award for permanent alimony, unless there is a statute that authorizes it. Or, a court can use its equity powers to award compensation to the injured spouse.

Example: Janet enters into a common law marriage with Quincy, not knowing that Quincy is still legally married to Claire. Janet and Quincy live together for five years, during which time they accumulate real estate and household furnishings. When Janet files for divorce, it is denied because Quincy is still married to Claire. Instead, the court annuls the marriage. When Janet requests a property settlement, the court allows her a proportion recovery of property accumulated during the relationship. To hold otherwise would be inequitable. See, e.g., Walker v. Walker, 47 N.W.2d 633 (Mich. 1951); Schlamberg v. Schlamberg, 41 N.E.2d 801 (Ind. 1942).

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