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Annulments and Void Marriages in New York
(provided by Robert E. Nowak , Esq.)
This article is a brief overview of the law in New York concerning invalid marriages. As with any court proceeding a matrimonial attorney should always be consulted. This article is not intended to be any form of legal advice and is not to be relied upon as such.
Void Marriages
There are some marriages that are entered into in New York that are void from their inception, that is, they are not recognized as a valid marriage and can never ripen into a valid marriage regardless of their length. These marriages are called void marriages.
Marriages entered into between two parties that are related within the prohibited degrees of consanguinity are void. Section 5 of the Domestic Relations Law provides that marriages are void if entered into between (1) an ancestor and descendant; brothers and sisters of the whole or half blood; an uncle and a niece or an aunt and a nephew. These marriages are called incestuous. You will notice that, contrary to popular belief, there is no prohibition against marriages between cousins.
Section 6 of the Domestic Relations Law provides that a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is still living unless such marriage has been annulled or dissolved. These marriages are called bigamous.
To officially terminate these marriage one commences an action entitled "Action To Declare The Nullity of a Void Marriage".
Annulments
Marriages that are void from the time its nullity is declared by a court of competent jurisdiction are called voidable marriages and it is these marriages that can be annulled.
Section 7 of the Domestic Relations Law provides: if either party thereto:
1. Under the age of consent, which is eighteen years, provided that nonage shall not of itself constitute an absolute right to the annulment of such marriage, but such annulment shall be in the discretion of the court which shall take into consideration all the facts and circumstances surrounding the marriage. Only the infant, either parent of the infant, guardian of the infant, or, where allowed by the court, any person as the next friend of the infant my commence the action for annulment. The annulment will not be granted if the infant freely cohabited with the other party after reaching the age of eighteen.
2. Is incapable of consenting to a marriage for want of understanding. If a party is unable to understand the nature, effect, and consequences of the contract of marriage because of mental incapacity (mental illness or mental retardation), the marriage can be annulled.
3. Is incapable of entering into the marriage from physical cause. Physical incapacity means the inability to have sexual relations. This inability must exist at the time of the marriage and must be incurable. Inability to have sexual relations after a period of time after the marriage is not grounds for annulment.
4. Consent to the marriage by reason of force, duress or fraud. If a person's consent to marriage has been obtained by violence or threatened violence, the marriage may be annulled for duress. Fraud is a material misrepresentation of fact relied upon by the other party. In order to annul a marriage for fraud, the fraud must be essential to the marital relations. The misrepresentation must be such it would deceive an ordinary prudent person. Concealment might constitute fraud.
5. Has been incurable mentally ill for a period of five years or more. A court may include in the judgment a provision providing for the suitable support, care, and maintenance of the disabled spouse for the life of the disabled spouse, payable from the property or income of the nondisabled spouse.
The procedure to either declare the nullity of a void marriage or to annul a marriage can be found in Section 140 to 146 Domestic Relations Law. The procedure must be strictly followed.
Information provided by:
Robert E. Nowak, Esq. located at
http://www.divorcesource.com/NY/nowak.html
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