baybeedoll said:
Is it possible to get an anulment based on the lenght of time that you are married? I have only been married for 3 months, yet my husband has not lived with me for 2 months due to irreconcilable differences. We do, however have 2 children together, does this have any baring on whether the process would be anulment or divorce?
My response:
Once a marriage has been shown to exist, it is presumed to be a legal and valid marriage. This presumption has been described as one of the strongest known to the law, and the courts have generally required a high degree of proof to overcome it. [Moran v Superior Court of Sacramento County (1940) 38 Cal App 2d 328, 100 P2d 1096]
A marriage may be ended by a judgment of nullity only if the marriage is void or voidable. [Re Estate of Karau (1938) 26 Cal App 2d 606, 80 P2d 108; for further discussion of void marriage, see § 20:88; for further discussion of voidable marriage] A marriage cannot be annulled unless there was something legally wrong in its inception; if valid when contracted, it can never be annulled. [McDonald v McDonald (1936) 6 Cal 2d 457, 58 P2d 163, 104 ALR 1290]
A judgment of nullity restores the parties to the status of unmarried persons. [Fam C §2212(a)] However, this is technically a correct statement only for voidable marriages, which require legal action to terminate the relationship. A void marriage technically never existed, so the parties need not be "restored" to the status of unmarried persons. In either case, the judgment has the effect of declaring the marriage void from the beginning. [Sefton v Sefton (1955) 45 Cal 2d 872, 291 P2d 439] The judgment is conclusive only as to the parties to the proceeding and those claiming under them. [Fam C §2212(b)]
Even if an annulment is granted, a court may still order support, fees, and a division of property for a putative spouse (one who believed in good faith that the marriage was valid). [Fam C §§2251, 2254, 2255] However, if the court finds that the party seeking relief did not enter into the marriage in good faith and thus is not a putative spouse, such relief will be denied. [In re Marriage of Liu (1987, 6th Dist) 197 Cal App 3d 143, 242 Cal Rptr 649]
A marriage is voidable and may be declared a nullity if any of the following six conditions existed at the time of the marriage, and if the annulment action is brought by the proper parties within the limitations period specified by Fam C §2211:
(1). Minority [Fam C §§301, 302, 2210(a)]
(2). Unsound mind [Fam C §2210(c)]
(3). Fraud [Fam C §2210(d)]
(4). Force [Fam C §2210(e)]
(5). Physical incapacity [Fam C §2210(f)]
(6). Bigamy [Fam C §§2201(b), 2210(b)]
A voidable marriage is valid for all civil purposes, between the parties and against the world, until it is declared a nullity. [Re Estate of Gregorson (1911) 160 Cal 21, 116 P 60]
So, you tell me if you're entitled to an annulment of your marriage. Did any of the above conditions exist at the moment you and he said "I do" ?
IAAL
