PBarry said:
I live in CA. Was married in Bermuda in '98 but my divorce from 1st husband was not final until 4 months later. we are now splitting, do we file for divorce or do we annul the "marriage"? We own a home together, and have a one year old child together. Is annulment still an option?
My response:
"Void" vs. "Voidable" Marriage
Technical distinctions
Void marriage invalid per se: A void marriage (Ca Fam §§ 2200-2201) is invalid and a nullity from its inception. It never legally existed and its invalidity may be shown in any proceeding where the fact of marriage is material (i.e., by direct or collateral attack). [In re Gregorson's Estate (1911) 160 Cal. 21, 116 P 60]
Judgment advisable: Even though a void marriage is technically nonexistent, a judgment of nullity is still advisable: Significantly, the judgment will eliminate doubt as to the parties' marital status (making the fact of invalidity a matter of public record); and will also conclusively determine the parties' "marital" property and support rights.
Voidable marriage valid until annulled: On the other hand, a voidable marriage (Ca Fam § 2210) is valid for all civil purposes between the parties and against the world until adjudged a nullity; i.e., the marriage is invalidated only from the time it is so declared by a court of competent jurisdiction. [In re Gregorson's Estate, supra]
Moreover, with the passage of time, a voidable marriage may, for all practical purposes, become a valid (nonvoidable) marriage . . . because a proceeding to annul a voidable marriage must be commenced within statutorily-prescribed time limits. [Ca Fam § 2211] Once the applicable statutory period expires, a judicial termination of marital status and adjudication of the bundle of rights and responsibilities incident thereto must proceed by an ordinary marriage dissolution.
Bases for Void Marriage: There are two grounds upon which a marriage may be adjudged a nullity as "void" (Ca Fam §§ 2200, 2201):
Incest: A marriage between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood), or uncles and nieces or aunts and nephews is incestuous and void from the beginning, "whether the relationship is legitimate or illegitimate." [Ca Fam § 2200]
Bigamy: A subsequent marriage is illegal and void from the beginning if either party has a spouse still living unless the former marriage was dissolved or adjudged a nullity before the date of the subsequent marriage. [Ca Fam § 2201(a)(1)]
Exception--preexisting marriage to spouse absent five years: A subsequent marriage when a party has a spouse still living is only voidable (valid until adjudged a nullity pursuant to § 2210(b), where, at the time of the subsequent marriage, the former spouse (a) has been absent, and not known to be living for five successive years immediately preceding the subsequent marriage, or (b) "generally reputed" or believed to be dead. [Ca Fam § 2201(a)(2) & (b)]
Fraud warranting annulment
Concealment of sterility (Vileta v. Vileta (1942) 53 Cal.App.2d 794, 128 P.2d 376), of existing pregnancy (Hardesty v. Hardesty (1924) 193 Cal. 330, 223 P 951), or of an intent not to terminate a sexual relationship with a "significant other" (Schaub v. Schaub (1945) 71 Cal.App.2d 467, 162 P.2d 966, 972-973) goes to the "very essence" of the marriage relationship and thus is sufficient ground for a judgment of nullity.
A concealed intent not to live with the other spouse (Handley v. Handley, supra), not to engage in sexual relations with the other spouse (Millar v. Millar (1917) 175 Cal. 797, 167 P 394), or not to have children despite a promise to the contrary (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 255 P.2d 65) supports a judgment of nullity on the ground of fraud.
Wife, who was induced to marry by Husband's false representations he was an honest, law abiding, respectable and honorable person and that he had a child who was well provided for, was entitled to a judgment of nullity on the ground of fraud where Husband had in fact been convicted of grand theft, was a parole violator and a fugitive from justice, and was guilty of failure to support his children from a prior marriage. [Douglass v. Douglass (1957) 148 Cal.App.2d 867, 307 P.2d 674--H's fraud defeated W's "essential purposes" in entering into marriage relationship]
A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties. [Marriage of Liu (1987) 197 Cal.App.3d 143, 242 Cal.Rptr. 649]
Insufficient fraud: On the other hand, "the concealment of incontinence, temper, idleness, extravagance, coldness or fortune inadequate to representations cannot be the basis for an annulment." [Marriage of Johnston (1993) 18 Cal.App.4th 499, 501, 22 Cal.Rptr.2d 253, 255 (internal quotes omitted)]
Thus, a party's false representation he or she owned a particular business (Mayer v. Mayer (1929) 207 Cal. 685, 694-695, 279 P 783) or was a "person of means" (Marshall v. Marshall (1931) 212 Cal. 736, 737-738, 300 P 816, 817) is not the type of "fraud" warranting a judgment of nullity.
Deceit about one's chastity or moral character is not "vital" to the marital relationship and thus will not justify a judgment of nullity on the basis of fraud. [Barnes v. Barnes (1895) 110 Cal. 418, 421, 42 P 904, 905; but see Douglass v. Douglass (1957) 148 Cal.App.2d 867, 870-871, 307 P.2d 674, 676 (concealed criminal record as sufficient fraud]
Nor is there sufficient fraud to annul a marriage simply because a party concealed a severe drinking problem (or, presumably, drug addiction), refused to seek employment after contracting the marriage (despite assurances before marriage to the contrary), proved to be a "disappointing" sexual partner, and/or turned from a "polite" and "nice" person before marriage to a "dirty," "unattractive" and disrespectful person after the marriage. A finding of § 2210(d) fraud cannot rest solely on the fact a spouse "turned from a prince into a frog." [Marriage of Johnston, supra, 18 Cal.App.4th at 500-502, 22 Cal.Rptr.2d at 254-255--that "husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem" not sufficient grounds for annulment]
Force: Either party's consent to the marriage was obtained by "force," unless the coerced party thereafter "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(e); see Marriage of Weintraub (1985) 167 Cal.App.3d 420, 422, 213 Cal.Rptr. 159, 160--W abducted by H and forced to marry him by force, beatings, intimidation and threats to W's and her family's safety]
Threats: Threats inducing consent to marriage may support a judgment of nullity on the ground of force, provided the threats were the sole inducing cause and of sufficient magnitude as to overcome the spouse's free will. [Nicholson v. Nicholson (1917) 174 Cal. 391, 393-394, 163 P 219, 220--threat to involve W as criminal accomplice insufficient where financial straits (among other factors) could just as likely have motivated her consent]
Physical incapacity: Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f); Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762, 14 Cal.Rptr. 793, 794]
A nullity action is commenced by filing a petition for judgment of nullity on the form prescribed by Ca Rules of Court Rule 1281 [Ca Fam § 2250(a)]
A copy of the petition and summons thereon (Ca Rules of Court Rule 1283) must be served on the other party to the marriage in the same manner required for service of process in civil actions generally. [Ca Fam § 2250(b)]
Oh, and watch those criminal penalties if someone reports your situation !
Good luck to you.
IAAL
