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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 void marriage or a voidable marriage null.
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.
Annulment is called faskh in Islam.
A difference exists between a void marriage and a voidable marriage .
A void marriage is a marriage which has no legal recognition (was not legally valid in the first place, ie. is void ab initio). Such a marriage 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. Reasons for a void marriage may include, depending on jurisdiction, consanguinity (incestual marriage), bigamy, group marriage, child marriage. Same sex marriage is void in most countries, although more countries are today recognizing it.
A voidable marriage is a marriage which can be canceled at the option of one of the parties. It is a valid marriage, but is subject to cancellation if contested in court by one of the parties to the marriage. The validity of a voidable marriage can only be made by one of the parties to the marriage; thus, a voidable marriage cannot be annulled after the death of one of the parties. A marriage can be voidable for a variety of reasons, depending on jurisdiction. Forced/coerced marriages are usually voidable. In countries where marriage law is influenced by religion (especially Roman Catholicism) there can be numerous reasons for a marriage to be voidable (see section below).
The Church of England, the mother church of the worldwide Anglican Communion, historically had the right to grant annulments, while divorces were "only available through an Act of Parliament." Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.
Methodist Theology Today, edited by Clive Marsh, states that:
when ministers say, "I pronounce you husband and wife," they not only announce the wedding—they create it by transforming the bride and groom into a married couple. Legally they are now husband and wife in society. Spiritually, from a sacramental point of view, they are joined together as one in the sight of God. A minute before they say their vows, either can call off the wedding. After they say it, the couple must go through a divorce or annulment to undo the marriage.
According to Catholic dogma, 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 viewed as returning the property after a consummated sale. Despite this, annulments have historically been performed well after consummation (especially for royalty) since divorce was not an option; these exceptional circumstances usually required a papal dispensation. Politics could influence the annulment process. Henry VIII of England unsuccessfully petitioned Pope Clement VII for an annulment of this type.
A "Declaration of Nullity" is not viewed by the Church as the 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.
A valid natural marriage is not a regarded as sacrament, however, if at least one of the parties is not baptized. 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:
Conversely, 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. Pope Julius II issued one such dispensation allowing Henry VIII of England to marry Catherine of Aragon, because Catherine had previously been briefly married to Henry's brother Prince Arthur, who had died after 20 weeks of marriage to Catherine.
A man does not need grounds to divorce his wife in Islam. To divorce, he can simply invoke Talaq and part with the dower (brideprice) he gave her before marriage; or, he can invoke Lian doctrine in case of adultery, self certify and swear by Allah four times, and Sharia requires the court to grant divorce requested by the man.
In contrast, Sharia does not grant a Muslim woman simple ways to end her marital relationship - her options are limited and burden of evidence set high. Faskh (annulment) doctrine specifies certain situations when a Sharia court can grant her request and annul the marriage.
Grounds for Faskh are: (a) irregular marriage (fasid), (b) forbidden marriage (batil), (c) the marriage was contracted by non-Muslim husband who adopted Islam after marriage, (d) the husband or wife became an apostate after marriage, (e) husband is unable to consummate the marriage. In each of these cases, the wife must provide four independent witnesses acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.
In Sunni Maliki school of jurisprudence (fiqh), cruelty, disease, life threatening ailment and desertion are additional Sharia approved grounds for the wife or the husband to seek annulment of the marriage. In these cases too, the wife must provide two male witnesses or one male and two female witnesses or in some cases four witnesses, acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.
In certain circumstances, an unrelated Muslim can petition a Qadi to void (faskh) the marriage of a Muslim couple who may not want the marriage to end. For example, in case the third party detects apostasy from Islam by either husband or wife (through blasphemy, failure to respect Sharia, or conversion of husband or wife or both from Islam to Christianity, etc.). In cases of apostasy, in addition to annulment of the marriage, the apostate may face additional penalties such as death sentence, imprisonment and civil penalities unless they repent and return to Islam.
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.
England and Wales provides for both void and voidable marriages.
Section 13 of the Matrimonial Causes Act 1973 provides for certain restrictions in regard to the possibility of annulling voidable marriages, including where the petitioner knew of the "defect" and of the possibility of annulment, but induced the respondent to believe that he would not seek an annulment; or where it would be "unjust" to the respondent to grant the decree of nullity. There is usually a time limit of three years from the date of the marriage in order to institute the proceedings.
The grounds of annulment in regard to a voidable marriage, and indeed the concept of a voidable marriage itself, have become controversial in recent years. According to a paper in Singapore Academy of Law Journal:
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