New York Annulment

      The subject of annulment is likely the most misunderstood area of matrimonial law in New York.  To understand annulment in New York it is best to set aside everything that you think you know about the subject.

      The first thing to keep in mind is that there are two different types of annulments: civil annulments and religious annulments.  We are considering here only a civil annulment, that is the legal termination of a marriage by annulment.  It may be possible to obtain a religious annulment even though you obtain a divorce instead of a civil annulment.  To learn about a religious annulment, you should consult the religious faith that performed the marriage. The requirements and effects of a religious annulment most likely are quite different from a civil annulment. 

      There is no such thing as a trial marriage in New York.  There is no right to an annulment if you decide after a week that the marriage was a mistake.  Once you are married, you are married.  Whether you have been married for one day or fifty years, the rules that apply to end the marriage are the same. 

      It is best to think of annulment as a type of divorce. Both annulment and divorce end a marriage.  If you obtain an annulment instead of a divorce, you receive a Judgment of Annulment instead of a Judgment of Divorce.  There is no real difference.  They both legally end the marriage.  An annulment does not remove from public records the fact that you were married.  The only real benefit of having a marriage annulled is that others will likely think that it means something less negative than being divorced.

      You should consider annulment when the facts of your situation indicate that annulment is appropriate.  The innocent party must be the one to start the annulment. There are strict time limitations depending upon the specific grounds for the annulment. An understanding of the specific grounds required for annulments begins with a discussion of what is meant by the terms void and voidable.

      Under New York law, some marriages are void from their inception. That is, they are not recognized as valid from the start and can never become valid regardless of how long the participants have been married. These are called void marriages. Examples of void marriages are:

  • Marriage based upon incest. The law defines such a marriage as a marriage between two closely related family members, such as, for example, brother and sister, uncle and niece, or aunt and nephew; and
  • Bigamy, which occurs if one of the parties was still legally married to someone else at the time of the second marriage.

      Although such a marriage is considered void, it is necessary commence a legal action to obtain an annulment so that the records are set straight.

      Under New York law, there are also voidable marriages, which do not have one of the above-mentioned basic flaws, but which can be annulled nevertheless if any of the following conditions is met:

  • If either spouse was incurably unable to have sexual intercourse at the time of marriage;
  •  If after marriage, either partner becomes incurably insane for five years or more. The Court may include in such an annulment judgment a provision that includes suitable support, care and maintenance of the disabled spouse for the life of that spouse, payable from the property or income of the non-disabled spouse;
  • A marriage between persons younger than 18 may be annulled at the discretion of the Court, if the spouse who is under 18 wants an annulment. The annulment will not be granted if the minor cohabited freely with the other party after reaching the age of 18;
  • If a party is unable to understand the nature, effect and consequences of the contract of marriage because of mental incapacity, such as mental illness or mental retardation;
  • If either spouse consents to marry as a result of force or duress by the other; or
  • Where consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. Concealment of a material fact may constitute fraud.

      In most cases, the last ground for annulment is used, that is that the person who is asking for the annulment was tricked into the marriage in some basic way.

      As in the case of a void marriage, a legal action is required for annulment of a voidable marriage. The annulment requires proof of the ground upon which the action is based.  Often the grounds are proven by an affidavit signed by a witness.

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