How to Get an Annulment in California
Annulments in California can get complicated. We explain how to do it right.
In an annulment in California, the marriage, itself, is in question - it's validity and enforceability. An annulment is like an eraser at the end of a pencil. You are looking to undo what has been done.
Nothing in this article is legal advice. You should not base a decision on your case from an article you read. For that, your specific facts need to be analyzed by the right attorney. Contact our experienced and skilled family law attorneys for an affordable strategy session about your California annulment.
Annulments treat a void versus a voidable marriage differently
An annulment, which is also called a judgment of nullity, results from either a void marriage or a voidable marriage.
You may ask," what is the difference between those two?"
Think of a void marriage as one that was never legal or proper. It doesn't matter whether or not one or both people filed for an annulment. Then, think of a voidable marriage as one that is valid until there is an annulment. Don't overthink this concept.
Let's keep going.
Void or voidable, getting a judgment of nullity is important in most situations
Even though a void marriage was never legally valid, it may a bad idea to simply assume you will be protected, going forward. This is particularly important because there are situations where a person in a void marriage could claim certain property rights or even ask for support.
Be careful. If there are children involved, it gets more complex due to child custody and related issues.
Should you seek to annul the marriage if it is void? What do you have to gain or lose? It is always best to consult with an experienced family law attorney to decide how to proceed forward, regardless of whether you have a void or voidable marriage.
Let's go through how to get an annulment in California.
How to get an annulment in California based on bigamy?
A marriage while either the husband or wife was married to another person is a bigamous marriage. Bigamous marriages are generally considered void but there are exceptions and they are odd but creative and make the bigamous marriage voidable.
They are:
- For 5 successive years immediately before the bigamous marriage, the prior spouse had been absent and not known to be living; or
- At the time of the marriage, the prior spouse was generally reputed or believed to be dead.
It’s not difficult to figure out why these exceptions exist.
They create a voidable marriage because there is less fault than actually knowing one is entering into a bigamous marriage.
This lesser fault allows the court to treat the marriage as voidable, as opposed to void.
Therefore, the exceptions have been carved out to allow the marriage to continue until and unless either party wishes to seek an annulment.
That annulment based on current California law which is Family Code 2211(b) allows either party to file for an annulment during the life of the other.
The prior spouse who was believed to be dead or was absent can even file for such an annulment.
How to get an annulment in California based on fraud?
This is possibly the most common reason for an annulment.
Fraud makes the marriage voidable. Fraud means that either spouse’s consent to the marriage was obtained by fraud, which is typically either a false representation or concealment that is substantive. What is substantive? That basically means the fraudulent basis for getting married better be an important one and one that goes to the heart and essence of the marital relationship.
There have been many cases in California within our appellate courts that have come down on these issues. We won’t discuss them here but because there is precedent, if we are retained, we can compare your facts with earlier appellate decisions to see if they are helpful in evaluating your annulment case. What happens if the spouse claiming fraud, after learning about it, continues to live with the other spouse? Family Code 2210(d) answers that question when it states:
A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
…(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.
A petition for an annulment based on fraud must be filed pursuant to Family Code 2211(d)“…by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.”
How to get an annulment in California based on unsound mind?
Family Code 2210(c) states:
A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
…(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife.
The term unsound mind means that either of the spouses was not capable of understanding the nature of the marital contract and the duties and responsibilities it created at the time of the marriage ceremony.
That means a person can be of unsound mind before or after the ceremony but if it is shown the person was of sound mind when the ceremony occurred, the marriage may be valid.
You can see how this would be a difficult situation to evaluate and may even require expert testimony. That is why annulments based on this ground can get complicated and the facts and evidence have to be dissected very carefully.
To seek an annulment because of unsound mind, Family Code 2211(c) requires it be filed "by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party."
This ground makes a marriage voidable.
How to get an annulment in California based on physical incapacity?
Physical incapacity makes a marriage voidable.
Family Code 2210(f) states:
A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
…(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.
How much time is there to bring such an action? Family Code 2211(f) states it can be filed "by the injured party, within four years after the marriage."
How to get an annulment in California based on minority?
It at the time of the marriage, the person seeking an annulment was under 18 years old and the required parental and court consent wasn't obtained as required by Family Code 302 and 303, the marriage is voidable.
One exception is if the one seeking an annulment voluntarily cohabitated with the other spouse after becoming 18 years old.
When can such an annulment action be filed based on being under the age of 18?
Family Code 2211(a)(1) and (a)(2) state:
(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:
(1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
(2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.
What happens in a situation where the minor misrepresents his or her age to get married? Probably because the person is a minor and minors often get the benefit of the doubt in California law, the law has been forgiving in such a situation and has still allowed the minor to seek an annulment despite that misrepresentation.
How to get an annulment in California based on incest?
Incest makes the marriage void. That should be a no-brainer.
I would also hope this would be obvious - incest is a big no-no in California.
Family Code 2200 states:
Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.
How to get an annulment in California based on force?
If consent to the marriage was obtained by force, the marriage is voidable. The common exception applies here again - if the person who claims to have been forced freely cohabitated with the other person, that may be an exception.
What is force? That will depend on the facts of the case and there is no right answer to that question. It can be as extreme as physical force or threats of physical harm and as simple as non-violent threats that coerced the consent. There are many different kinds.
Forced marriages are pretty uncommon in the United States but more common in other parts of the world.
What did you learn about how to get an annulment in California?
I hope what you got out of this article is that the rules about annulments are complicated and you should not try to represent yourself. Remember, nothing we have written here is legal advice and there is more to California law about annulments than what we have written here. Do not apply what you have read to your specific situation. The advice of an experienced family law lawyer after he or she is retained is very important in any California annulment action.
Are you seeking an annulment or facing one?
Contact us to discuss your case and we can have an affordable strategy session to go over the specific facts and what our family law firm can do to help you. We handle family law matters in the seven Southern California Counties of Orange County, Los Angeles County, Ventura, Riverside, San Bernardino, San Diego and Kern Counties.
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