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|Marriage and other|
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code|
(or Criminal Law)
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment). For example, this is the case in section 12 of the Matrimonial Causes Act 1973 in England and Wales.
In legal terminology, an annulment makes a voidable marriage null. If a marriage is void ab initio, then it is automatically null, although a declaration of nullity is required to establish this. The process of obtaining a declaration of nullity is similar to an annulment process. Despite its retroactive nature, children born before an annulment are considered legitimate in many countries.
Annulments are closely associated with the Catholic Church, which does not permit divorce, teaching that marriage is a lifelong commitment which cannot be dissolved through divorce, but can be annulled if invalidly entered into.
A Catholic annulment is analogous to a finding that a contract of sale is invalid, and hence, that the property for sale must be considered to have never been legally transferred into another's ownership. A divorce, on the other hand, is more like returning the property after a consummated sale.
A "Declaration of Nullity" is not a dissolution of a marriage. The Church teaches that the marriage of baptized persons is a sacrament and, once consummated and thereby confirmed, cannot be dissolved as long as the parties to it are alive. As regards a marriage in which at least one of the parties is not baptized - a marriage therefore that, while being a valid natural marriage, is not a sacrament - it holds that in certain circumstances it can be dissolved (divorce) in cases of Pauline privilege and Petrine privilege, but only for the sake of the higher good of the spiritual welfare of one of the parties.
The Church holds the exchange of consent between the spouses to be the indispensable element that "makes the marriage". The consent consists in a "human act by which the partners mutually give themselves to each other": "I take you to be my wife" - "I take you to be my husband." This consent that binds the spouses to each other finds its fulfillment in the two "becoming one flesh". If consent is lacking there is no marriage. The consent must be an act of the will of each of the contracting parties, free of coercion or grave external fear. No human power can substitute for this consent. If this freedom is lacking the marriage is invalid. For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. -Catechism of the Catholic Church, 1626-1629
Although an annulment is thus a declaration that "the marriage never existed", the Church recognizes that the relationship was a putative marriage, which gives rise to "natural obligations". In canon law, children conceived or born of either a valid or a putative marriage are considered legitimate, and illegitimate children are legitimized by a putative marriage of their parents, as by a valid marriage.
The Catholic Church considers a Catholic marriage to be a contract entered into between a man and a woman before God, with the priest overseeing the wedding ceremony. Certain conditions are necessary for a marriage to be valid in canon law. Lack of any of these conditions makes a marriage invalid and is a basis for annulment. Accordingly, apart from the question of diriment impediments dealt with below, there is a fourfold classification of other grounds for annulment: defect of form, defect of contract, defect of willingness, defect of capacity.
For annulment, proof is required of the existence of one of these defects, since Canon law presumes all marriages are valid until proven otherwise.
An annulment declared by the Catholic Church is distinct from a civil divorce. A civil divorce may serve as proof for the ecclesiastical tribunal that the marriage community cannot be rebuilt. In some countries, such as Italy, in which Catholic Church marriages are automatically transcribed to the civil records, a Church annulment may be granted the exequatur and treated as the equivalent of a civil divorce.
A reason for invalidity and thus for annulment is what is called a diriment impediment to a marriage. A prohibitory impediment such as that concerning marriage, without prior permission of the local ordinary, of a Catholic with a non-Catholic Christian makes entering a marriage wrong, but does not invalidate the marriage. A diriment impediment, such as being brother and sister, or being married to another person at the time of the wedding, prevents a marriage from being validly contracted at all. The union resulting is called a putative marriage.
The diriment impediments are:
The Church may grant a dispensation from some impediments, exempting a particular couple from the obligation of the law. The marriage is then valid, and so non-annulable. If a marriage has been contracted invalidly, the Church can still exempt from some diriment impediments, granting a convalidation or sanatio in radice of the marriage.
Fraud generally means the intentional deception of the Plaintiff by the Defendant in order to induce the Plaintiff to marry. The misrepresentation must be substantial in nature, and the Plaintiff's consent to the marriage predicated on the Defendant’s statement. The perpetration of the fraud (prior to the marriage), and the discovery of the fraud (subsequent to the marriage) must be proven by corroboration of a witness or other external proof, even if the Defendant admits guilt (DRL §144). The time limit is three years (not one year). This does not run from the date of the marriage, but the date the fraud was discovered, or could reasonably have been discovered.
A bigamous marriage (one party was still married at the time of the second marriage) cannot be annulled —it is void ab initio (not legal from its inception). However, either party (as well as certain other parties) can petition the Court with an "Action to Declare the Nullity of a Void Marriage" (DRL §140 (a)). The Court, upon proper pleadings, renders a judgment that the marriage is void. There may be effects of marriage such as a property settlement and even maintenance if the court finds it equitable to order such relief.
In Nevada, the qualifications for annulment include: a marriage that was void at the time performed (such as blood relatives, bigamy), lacked consent (such as, underage, intoxication, insanity), or is based on some kind of dishonesty. See also Nevada Annulment Statutes. To file actions based on fraud, you must have separated from your spouse as soon as you learned of the fraud.
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