Common Law and Annulments
Key Points
  • There are several reasons a court will consider granting an annulment.
  • Almost all the reasons involve some type of marital misconduct.
  • The difficulty to getting an annulment approved by the court is proving that the marital misconduct actually took place.

Grounds for annulment may be set forth by statute or, in many jurisdictions, common-law grounds suffice. The specific grounds under common law are:

  • Undisclosed prior marriage: This occurs when one spouse is still married to another person. Many jurisdictions allow annulment even if the appellant knew the person he or she was marrying had not been legally divorced or was denied the right to remarry after divorce.
  • Violation of divorce decree or statute barring remarriage: Some statutes prohibit remarriage after divorce within a certain time period after divorce or remarriage to a particular person. Violation of such statutes or divorce decrees to this effect are grounds for annulment.
  • Mock or trial marriage: Marriage entered into with intention that it should not be binding, such as a mock marriage or trial marriage. A party to the marriage that results from levity, jest and without intention to bind or enter into relationship, or no intention to assume rights or responsibilities of marriage may seek annulment. Where persons agree to marry to accomplish a desired objective - for example, legitimization of a child - the majority of courts hold the marriage as valid.
  • Under the age of consent: The jurisdiction to annul marriages by people who are not of legal age is generally conferred by statute. Some courts hold these statutes applicable even where residents marry in another state, and immediately return to their former residence, although the marriage was valid where performed. Other courts hold that if the marriage was permissible under the law of the state where the ceremony was performed, courts of the domicile of the parties will not annul it. Under most statutes, being under age does not itself constitute an absolute right to an annulment. The court may have discretion and the marriage remains valid for all civil purposes until a judicial decree of annulment is issued. Where the marriage is void by statute, the court retains no discretion.
  • Proxy marriage: Even absent statutory authority, some states recognize a proxy marriage, which is one where the spouses being united are not physically present and are represented instead by other persons. Other states do not recognize them other than as common-law marriage when followed by cohabitation and repute. A spouse in the military may annul a proxy marriage if there is no consummation, no cohabitation, or no treatment as husband and wife after the marriage ceremony.
  • Blood relationship: Incestuous marriages are marriage between parents and children, grandparents and grandchildren, brothers and sisters of half as well as whole blood, uncles and nieces of half as well as whole blood, aunts and nephews of half as well as whole blood, and first cousins of half and whole blood. A court may annul an incestuous marriage at request of either party to the marriage even though the applicant may have knowingly entered the marriage arrangement. However, courts of one state cannot, at the suit of either party, annul a marriage that was valid under the laws of another state on the ground that the marriage is contrary to domicile state's laws regarding blood relationship marriages.
  • Mental incapacity: Courts examine whether any incapacity existed at the time of the marriage. If a court finds in the affirmative, the marriage may be annulled as void from the point of the judicial decree of nullity entered. There remains a split of authority as to whether concealment of one's mental incapacity warrants annulment of the marriage. Where concealment does provide a ground for annulment, the following factors are considered: whether the affected spouse had knowledge of the actual condition and its seriousness, an intent to deceive, and absence of ratification by the innocent spouse after having learned the facts.
  • Temporary insanity: If temporary or periodic insanity is claimed, the condition at the time of marriage governs whether or not capacity to marry was present. A marriage will not be annulled if entered into during a lucid interval. The degree of mental incapacity necessary for grounds for an annulment is incapacity sufficient to deprive a party of an understanding of the duties and relationship of marriage. Mere weakness of intellect remains insufficient.
  • Intoxication: The complaining party must show intoxication at the marriage ceremony to such a degree as to render that person incapable of knowing the nature of the marriage contract and its consequences.

In an annulment, good legal advice is important. Without an annulment lawyer, many individuals lose their case because of their inability to argue definitively for a disestablishment of a marital contract.

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