Annulment
You can seek an annulment if you want to have a court declare that your marriage is no longer valid, even though it may have been valid when you first got married. There are five reasons you can use to get an annulment of your marriage:
- Too young to give consent to get married – Marriage of any person under 18 needs the written consent of both parents. Marriage of any person under 16 also needs approval by order of a judge. If these requirements are not met, a spouse who is still under 18 (or his or her parents or guardians) can seek an annulment.
- Lack of mental capacity to give consent to get married – If you or your spouse was mentally ill or otherwise mentally incapacitated at the time of the marriage, the marriage may be annulled for that reason while either spouse is alive.
- Lack of physical capacity to consummate the marriage – If you or your spouse is physically unable to have sexual intercourse, but did not know of the incapacity at the time of the marriage, the marriage may possibly be annulled. You must ask for the annulment within the first five years of the marriage.
- Consent for the marriage obtained by force, duress, or fraud – If you entered into the marriage due to pressure, force, or fraud, you may be able to obtain an annulment. Examples of fraudulent marriages include:
- marrying to obtain immigration status (a green card)
- claiming to be pregnant to entice someone to marry
- claiming you want to have children when you really don’t
- Incurable mental illness for a period of five years or more – If your spouse is mentally ill for more than five years and cannot be cured, you may be able to obtain an annulment.
When a marriage is annulled, it is declared null and void. The record of the marriage and annulment remains, but you and your former spouse may consider yourselves to not have been married. Any children of the marriage remain legitimate. After the annulment, a few issues must be dealt with, including:
- Minor children: You and your former spouse both remain responsible for any minor children of the marriage. A court can make orders for custody, visitation and financial support of minor children.
- Division of property: A court can make an order to distribute marital property fairly between you and your former spouse, and also may order maintenance payments, just as if the action were for divorce.
Declaration of Nullity
There are three circumstances in which a marriage simply does not take effect, and you remain legally unmarried even immediately after the wedding ceremony. Your marriage is a nullity. It never was valid and it never could have been valid. These circumstances include:
- Incest – You and your spouse are biologically related in one of the following ways:
- Descendants (e.g. parent-child; grandparent- grandchild)
- Siblings (at least one shared parent, full or half brother and sister)
- Uncle and niece or aunt and nephew
- Bigamy/polygamy – You or your spouse was legally married to another living person at the time of your marriage
- Improper solemnization – Your marriage ceremony was performed by someone not officially permitted to perform a marriage ceremony. Generally the following officials may preside over and solemnize a marriage:
- A clergy member or minister of any religion
- A senior leader of one of New York’s Societies for Ethical Culture
- A mayor of a village or city
- A county executive of a county
- A recorder, city magistrate, police justice or police magistrate of a city
- A federal or state judge sitting in New York State (a retired judge can sometimes perform marriage ceremonies as well).
In any of these three circumstances you do not need to ask for an annulment or divorce, because there is no marriage. But you may want an official record stating that the marriage is a nullity. You or your spouse can ask the court for a formal declaration that the marriage is, and always has been, a nullity. (And in the case of bigamy/polygamy another living spouse can ask for such a declaration.)
If the court issues a Declaration of Nullity then both that declaration and the void marriage remain in the records. If you and your spouse have children together, the court may also legitimize them (make them legitimate). The court will hold both parents responsible for their children. Just as in an annulment, the court can divide your property fairly between you and can order maintenance and child support. Children would also have rights to inheritances.