You Want an Annulment

By Staff Writer

A marriage may be ended in by Divorce or by annulment. Many clients request an annulment.  However, the legal requirements for obtaining an annulment are very strict.  There is not much practical difference between ending a marriage with an annulment or a with Divorce. In fact, in New York, if a marriage is annulled, any children of the marriage are considered legitimate and a Court can still order child support and spousal support, divide marital property, decide custody, award attorney’s fees, and so forth.

Since there is little practical difference between an annulment and a Divorce, and since the requirements for obtaining an annulment are so strict, there are fewer annulment cases. The reasons a couple might seek an annulment might include the inability to obtain a Divorce based on fault grounds, religious purposes - i.e. the need for an annulment of a prior marriage before a second marriage may be sanctified by a church - or for personal reasons.

There are six reasons for annulment in New York. If any one of those reasons exists and the annulment granted, the marriage is considered “void”. The Court will not issue a judgment terminating the marriage. Rather, the marriage will be deemed “a nullity”; that is, in the eyes of the law, it did not exist. If one spouse brings an action to annul the marriage, the other spouse can counterclaim and ask for a Divorce. The Court will then have three options.  It can declare the marriage a nullity and grant the annulment. If the Court grants the annulment, it cannot grant the Divorce. The Court can enter a judgment of Divorce, in which case the request for the annulment must be denied. The Court can also decide that neither party is entitled to the relief that is requested and deny both the Divorce and the annulment.

The grounds for annulment are:

  1. Bigamy;
  2. Marriage by a child under the age of 18;
  3. Marriage by a person who is mentally retarded or mentally ill;
  4. Marriage to a party who is physically incapable of consummating the marriage;
  5. Marriage by force, duress or fraud; and
  6. Marriage to a party who has been incurably mentally ill for a period of five years during the marriage. The requirements for seeking an annulment on all six grounds are detailed and specific. If you are considering an annulment, you should review the facts and circumstances of the particular case with an attorney.

One very important difference exists between an action for a Divorce and an action for an annulment. In an action for Divorce, only the Husband or Wife can ask for the Judgment of Divorce. In an action for an annulment, the parties to the marriage are not the only people who can ask for a declaration that the marriage is a nullity. Other people can ask that the marriage be annulled.  The people who can ask for that differ depending upon the reason for annulment that is sought in the particular case.