ARTICLE 9: Action to Annul a Marriage or Declare it Void
(provided by Divorce Source, Inc.)
Published 6.5.98
New York Domestic Relations Law Contents
Section 140. Action for judgment declaring nullity of void
marriages or annulling voidable marriage.
Section 141. Action to annul marriage on ground of incurable
mental illness for five years; procedure;
support.
Section 142. Dismissal of complaint in action by next friend
to annul a marriage.
Section 143. Jury trial.
Section 144. Proof required.
Section 146. Judgment, how far conclusive.
Sec. 140. Action for judgment declaring nullity of void
marriages or annulling voidable marriage.
(a) Former husband or
wife living. An action to declare the nullity of a void marriage
upon the ground that the former husband or wife of one of the
parties was living, the former marriage being in force, may be
maintained by either of the parties during the life-time of the
other, or by the former husband or wife.
(b) Party under age of consent. An action to annul a
marriage on the ground that one or both of the parties had not
attained the age of legal consent may be maintained by the
infant, or by either parent of the infant, or by the guardian of
the infant`s person; or the court may allow the action to be
maintained by any person as the next friend of the infant. But a
marriage shall not be annulled under this subdivision at the suit
of a party who was of the age of legal consent when it was
contracted, or by a party who for any time after he or she
attained that age freely cohabited with the other party as
husband or wife.
(c) Party a mentally retarded person or mentally ill person.
An action to annul a marriage on the ground that one of the
parties thereto was a mentally retarded person may be maintained
at any time during the life-time of either party by any relative
of a mentally retarded person, who has an interest to avoid the
marriage. An action to annul a marriage on the ground that one
of the parties thereto was a mentally ill person may be
maintained at any time during the continuance of the mental
illness, or, after the death of the mentally ill person in that
condition, and during the life of the other party to the
marriage, by any relative of the mentally ill person who has an
interest to avoid the marriage. Such an action may also be
maintained by the mentally ill person at any time after
restoration to a sound mind; but in that case, the marriage
should not be annulled if it appears that the parties freely
cohabited as husband and wife after the mentally ill person was
restored to a sound mind. Where one of the parties to a marriage
was a mentally ill person at the time of the marriage, an action
may also be maintained by the other party at any time during the
continuance of the mental illness, provided the plaintiff did not
know of the mental illness at the time of the marriage. Where no
relative of the mentally retarded person or mentally ill person
brings an action to annul the marriage and the mentally ill
person is not restored to sound mind, the court may allow an
action for that purpose to be maintained at any time during the
life-time of both the parties to the marriage, by any person as
the next friend of the mentally retarded person or mentally ill
person.
(d) Physical incapacity. An action to annul a marriage on
the ground that one of the parties was physically incapable of
entering into the marriage state may be maintained by the injured
party against the party whose incapacity is alleged; or such an
action may be maintained by the party who was incapable against
the other party, provided the incapable party was unaware of the
incapacity at the time of marriage, or if aware of such
incapacity, did not know it was incurable. Such an action can be
maintained only where an incapacity continues and is incurable,
and must be commenced before five years have expired since the
marriage.
(e) Consent by force, duress or fraud. An action to annul a
marriage on the ground that the consent of one of the parties
thereto was obtained by force or duress may be maintained at any
time by the party whose consent was so obtained. An action to
annul a marriage on the ground that the consent of one of the
parties thereto was obtained by fraud may be maintained by the
party whose consent was so obtained within the limitations of
time for enforcing a civil remedy of the civil practice law and
rules. Any such action may also be maintained during the
life-time of the other party by the parent, or the guardian of
the person of the party whose consent was so obtained, or by any
relative of that party who has an interest to avoid the marriage,
provided that in an action to annul a marriage on the ground of
fraud the limitation prescribed in the civil practice law and
rules has not run. But a marriage shall not be annulled on the
ground of force or duress if it appears that, at any time before
the commencement of the action, the parties thereto voluntarily
cohabited as husband and wife; or on the ground of fraud, if it
appears that, at any time before the commencement thereof, the
parties voluntarily cohabited as husband and wife, with a full
knowledge of the facts constituting the fraud.
(f) Incurable mental illness for five years. An action to
annul a marriage upon the ground that one of the parties has been
incurably mentally ill for a period of five years or more may be
maintained by or on behalf of either of the parties to such
marriage.
Sec. 141. Action to annul marriage on ground of incurable mental
illness for five years; procedure; support.
1. If the marriage be
annulled on the ground of the mental illness of a spouse, the court
may include in the judgment an order providing for his or her
suitable support, care and maintenance during life from the property
or income of the other spouse. The court shall specify the amount of
such support, care and maintenance and, before rendering judgment,
may exact security for such support, care and maintenance during life
and shall order the filing and recording of the instrument creating
such security in the office of the clerk of the county in which the
action is brought and the filing of two certified copies thereof with
the office of mental health at its Albany office. The provisions of
the judgment relating to support, care and maintenance of the
mentally ill spouse during his or her life and to security therefor
may be modified or amended at any time by the court upon due notice
to the other party and other interested parties as the court may
direct and in proper case the value of the suitable support, care and
maintenance to such spouse during the balance of his or her life
based upon appropriate mortality tables may be adjudged and
determined by the court in which the estate of a deceased spouse is
being administered and the same may be recovered on behalf of the
mentally ill spouse from the estate of the deceased spouse. If the
mentally ill spouse is maintained in an institution or otherwise
under the jurisdiction of the office of mental health, the suitable
support, care and maintenance as required in the judgment, unless
otherwise directed by the court, shall be the charge established by
the commissioner of mental health and such charge may be recovered in
the manner provided by law. Such amount shall continue to be so
required for the support of the mentally ill spouse in the event of
his or her removal from the custody of the office of mental health
unless thereafter otherwise directed by the court. Any security
exacted for the suitable support, care and maintenance during life of
the mentally ill spouse shall be available to that spouse or any
person on his or her behalf or to any person or agency providing
support, care and maintenance for such spouse in the event that the
required payments for such support, care and maintenance have not
been made and upon application to the court the other spouse shall be
ordered and directed to provide additional or further security.
2. Judgment annulling a marriage on such ground shall not be
rendered until, in addition to any other proofs in the case, a
thorough examination of the alleged mentally ill party shall have
been made by three physicians who are recognized authorities on
mental disease, to be appointed by the court, all of whom shall have
agreed that such party is incurably mentally ill and shall have so
reported to the court. In such action, the testimony of a physician
attached to a state hospital in the department of mental hygiene as
to information which he acquired in attending a patient in a
professional capacity at such hospital, shall be taken before a
referee appointed by a judge of the court in which such action is
pending if the court in its discretion shall determine that the
distance such physician must travel to attend the trial would be a
great inconvenience to him or the hospital, or that other sufficient
reason exists for the appointment of a referee for such purpose;
provided, however, that any judge of such court at any time in his
discretion, notwithstanding such deposition, may order that a
subpoena issue for the attendance and examination of such physician
upon the trial of the action. In such case a copy of the order shall
be served together with the subpoena.
3. Except as provided in paragraph five, when the person alleged to
be incurably mentally ill is confined in a state hospital for the
mentally ill of this state, one, and one only, of the physicians so
appointed shall be a member of the resident medical staff of such
hospital designated by the director thereof. If the alleged incurably
mentally ill person is not confined in a state hospital for the
mentally ill of this state, one of the examining physicians named in
pursuance of this section shall be the director of a state hospital
for the mentally ill if the alleged mentally ill person is within
this state, or the superintendent or comparable officer of a state
hospital for the mentally ill of the state or country where the
alleged mentally ill person is present if the alleged mentally ill
person is outside of this state. The report of such superintendent or
comparable officer of a state hospital for the mentally ill of such
other state or country shall not be received in evidence or
considered by the court unless he shall be a well educated physician
with at least five years of training and experience in the care and
treatment of persons suffering from mental disorders.
4. When the plaintiff has been permitted to bring such action or
prosecute the same as a poor person and the alleged incurably
mentally ill defendant is present within this state, the court shall
appoint three physicians who are examining physicians, as defined by
section 1.05 of the mental hygiene law, in the employment of the
department of mental hygiene. If the alleged mentally ill person be
outside of this state, the court may, upon proof thereof, appoint
three examining physicians who are qualified under the laws or
regulations of the foreign state or country where the alleged
mentally ill person is present and who have qualifications comparable
to those specified in section 1.05 of the mental hygiene law of the
state, provided, however, that one of such examining physicians shall
be the superintendent or comparable officer of a state hospital for
the mentally ill of such foreign state or country with qualifications
as specified in paragraph four. Such examiners shall make the
examination of the alleged mentally ill party present in this state
and file with the court a verified report of their findings and
conclusions without costs to such plaintiff when the plaintiff is a
poor person. Examination of an alleged mentally ill party present
outside of this state shall be made at the expense of the plaintiff.
Such report shall be received in evidence upon the trial of the
action without the personal appearance or testimony of such
examiners. If the court shall deem it necessary that the testimony of
any such examiners be taken, the court may order the taking of such
testimony by deposition only. The examiners so appointed by the court
may be members of the resident medical staff of any state hospital,
whether or not the alleged mentally ill person is being confined
there.
Sec. 142. Dismissal of complaint in action by next friend to
annul a marriage. Where the next friend of an infant, mentally
retarded person or mentally ill person maintains an action
annulling a marriage, the court may dismiss the complaint if
justice so requires, although, in a like case, the party to the
marriage, if plaintiff, would be entitled to judgment.
Sec. 143. Jury trial. In an action to annul a marriage,
except where it is founded upon an allegation of the physical
incapacity of one of the parties thereto, there is a right to
trial by a jury of all the issues of fact.
Sec. 144. Proof required.
1. In an action to annul a
marriage, a final judgment annulling the marriage shall not be
rendered by default for want of an appearance or pleading, or by
consent, or upon a trial of an issue, without proof of the facts
upon which the allegation of nullity is founded. Plaintiff shall
prove that there has been no such cohabitation between the
parties as would bar a judgment except that in an action under
subdivision (c) of section one hundred forty the plaintiff may
prove instead that the mental illness still continues.
2. In any action, whether or not contested, brought to
annul a marriage, the declaration or confession of either party
to the marriage is not alone sufficient as proof, but other
satisfactory evidence of the facts must be produced.
Sec. 146. Judgment, how far conclusive. A final judgment,
annulling a marriage rendered during the lifetime of both the
parties is conclusive evidence of the invalidity of the marriage
in every court of record or not of record, in any action or
special proceeding, civil or criminal. Such a judgment rendered
after the death of either party to the marriage is conclusive
only as against the parties to the action and those claiming
under them.
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