THE ATTORNEY'S CORNER: WHAT IS NULLITY OF MARRIAGE?

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By: Stephen C. Ross, Esq.

May 30, 2013 (San Diego County) – There are three potential legal remedies for couples who want to terminate or alter their marital or domestic partnership status. They include dissolution, legal separation and nullity. Dissolution terminates the status of a valid marriage resulting in the parties being considered single persons commencing on the date status is terminated. Legal separation is an option for spouses and partners who choose not to live together while maintaining the marital or partnership status. The third potential option, nullity, is the subject of this article.

A judgment of nullity should only be considered where the validity of the marriage or partnership is in doubt. A nullity proceeding is based on the belief that, for reasons in existence at the time of the marriage, there was never a valid marriage. In other words, the marriage is either void or voidable from the beginning. The nullity action attempts to determine whether the marital or partnership status ever existed.

A marriage may be considered invalid from the beginning due to irregularities in the statutory requirements to formalize the marriage procedure or other legal impediments that render the marriage void or voidable even if the formalization procedures where properly followed. A marriage meets the formalization requirements if it is licensed, solemnized and authenticated and the authenticated marriage license returned to the county recorder of the county where the license was issued. A couple planning to get married must first obtain a license from the county clerk. The license is authenticated by presenting sufficient evidence of each party’s name and date of birth to the clerk. The marriage is solemnized by the parties declaring before a minister, priest, rabbi, judge, etc. and necessary witnesses that they take each other as husband and wife. The person solemnizing the marriage returns the license to the county clerk within 10 days after the ceremony.

Properly formalized marriages may be void or voidable under certain circumstances. A void marriage is legally defective from the beginning and the defect cannot be cured. Incestuous marriages (parent/child, brother/sister, etc.), bigamous and polygamous marriages are considered void. A bigamous marriage may not be considered void under certain circumstances. For example, when the re-marrying spouse believed the former spouse was dead at the time of the subsequent marriage.

A voidable marriage may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

1. The person commencing the nullity proceeding, or on whose behalf the proceeding is commenced, was a minor and not capable of consenting to marriage;

2. The re-marrying spouse believed his or her former spouse was dead at the time of the subsequent marriage;

3. Either party was of unsound mind at the time of marriage, unless the spouse of unsound mind regains reason and freely cohabits with his or her spouse;

4. Either party consented to marriage based upon fraud, unless the defrauded party gains knowledge of the true facts and continues to freely cohabit with his or her spouse;

5. Either party consented to marriage by force, unless he or she continues to freely cohabit with his or her spouse; and,

6. Either party, at the time of marriage, was physically incapable of entering into marriage, the incapacity continues and appears to be incurable.

Stephen represents estate planning, trust, will, probate, trust administration, business formation, stepparent adoption and family law matters. He conducts estate planning and probate seminars throughout San Diego County. For more information or to schedule a seminar contact Stephen at (619) 795-8524, stephen@stephenrosslaw.com or visit www.stephenrosslaw.com.

Disclaimer: Information contained in this article is believed to be accurate. However, you should seek professional legal advice before relying on the information.


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