An annulment, also known as a “judgment of nullity,” and can be obtained due to a void marriage or an avoidable marriage.

What is a Void Marriage?

A void marriage is one that was never legal to begin with. In the State of California, a marriage is void in the following situations: (1) Incest: A marriage between parents and children, ancestors and descendants, siblings, uncles or aunts nieces or nephews, and (2) Bigamy or Polygamy: A marriage entered into by someone who was previously married, when the prior spouse is alive and the prior marriage was never dissolved. (There are exceptions for situations where the prior spouse was believed to be dead. In that situation the marriage is “voidable,” a term which will be discussed in greater detail below.)

What is a Voidable Marriage?

“Voidable” is a contract law term. It means that one of the parties who entered into the contract has the power to get out of the contract and avoid its obligations, if they desire to do so. Alternatively, they can remain bound to the contract and continue to enforce the contract on the other party. This power is usually granted to one party when it is later found that the other party had an unfair advantage when the contract was formed.

In family law, a voidable marriage is one where one of the spouses has the power to nullify, or “void,” the marriage contract. Alternatively, that party also has the power to decide to remain married, and both parties will remain bound to all marital rights and obligations.

In the State of California, a marriage may be declared voidable if one of the following situations exists: (1) The party seeking to void the marriage was below the age of consent when they entered into the marriage. However, this rule does not apply if that party freely and willingly lived with the other party as his or her spouse at any time after attaining the age of consent. (2) If one of the parties has a husband or wife who is living and but was absent and not known to that party to be living for a period of 5 years immediately prior to the subsequent marriage or was generally believed to be dead at the time the subsequent marriage began. (3) The party seeking to void the marriage was mentally incapacitated or of unsound mind when they entered into the marriage. However, this rule does not apply if, after coming to reason, the party freely and willingly lived with the other as his or her spouse for any length of time. (3) If consent of either party was obtained through fraud. However, this rule does not apply if, after being made aware of the fraud, the party whose consent was obtained by fraud freely and willingly lived with the other as his or her spouse for any length of time. (4) If consent of either party was obtained through force. However, this rule does not apply if the party whose consent was obtained by force afterwards freely and willingly lived with the other party as his or her spouse for any length of time. (5) And, if at the time of marriage either party was physically incapable of entering into the marriage state, and that incapacity continues and appears to be incurable.

What is a Putative Spouse?

When discussing void or voidable marriages you may hear the term “putative spouse.” A putative spouse is a spouse who was not legally married but believed in good faith that they had entered into a legal marriage. A putative spouse may retain the financial and property interests they would have possessed if the marriage had been legal.

10.0Diana Pamela Zitser

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diana@zitserlaw.com