It's The Law
Annulment of Marriage is a Possible Option
My spouse and I are breaking up. One of my friends said I should have my marriage annulled rather than a divorce. Can you explain how to obtain an annulment?
Grounds for divorce (dissolution of marriage) in Florida are set forth at Section 61.052 Fla. Stat. The evidence must establish that the marriage is irretrievably broken or mental incapacity of one of the parties. Establishing a marriage is irretrievably broken is easily done, as it only takes the testimony of one party. An action for dissolution of marriage, admits the validity of the marriage and seeks to terminate it based on the statutory criteria. Action for annulment claims the marriage is invalid.
Florida has no statute establishing grounds for annulment. Grounds for annulment are a matter of common law, much of which was inherited from England.
Grounds for dissolution of marriage arise after the marriage was ended. Grounds for annulment exist at time of the purported marriage. And, it gets even more complicated. A marriage that qualifies for annulment can be either void or voidable. Void marriages are those so defective that the law makes them absolutely invalid. A void marriage may be challenged at any time by anyone.
A voidable marriage is a marriage which suffers some defect which might be corrected or waived by action of the parties after the marriage. It generally cannot be challenged by one of the parties.
Perhaps the best known ground for annulment is bigamy. A bigamous marriage is one in which one or both parties were married to others at the time they got married. Bigamy is also a third degree felony, although the criminal statutes carved out exceptions from prosecution such as a reasonable belief that a prior spouse is dead.
Incestuous marriages are void. Florida defines incest as marriage to a parent or child, aunt or uncle, niece or nephew.
A Florida statute prohibits marriages between persons of the same sex, which makes any same sex marriage entered in Florida void. Recent challenges to that statute on constitutional grounds, along with recent court decisions, may eliminate that ground for annulment.
The same statute also requires the parties be over the age of eighteen years, with exceptions for parental consent and pregnancy. Underage marriages are voidable, not void, and are voidable by the underage party any time before or promptly after he or she turns eighteen.
Physical incapacity to consummate the marriage makes the marriage voidable. Impotence is defined as the inability or lack of capacity for normal sexual intercourse.
Since marriage is a contract, grounds to rescind or void a contract can also be grounds for annulment. When a party is coerced into marriage to the extent that free will is destroyed, the marriage is voidable, but cannot be attacked after the death of either party.
Lack of mental capacity is also ground to annul a marriage. Depending on circumstances, it can make marriage void or voidable. Permanent mental incapacity usually renders a marriage void while temporary incapacity makes it voidable. Annulments have been granted where one party was in a coma continuously from time of marriage to death, where a party suffered from a brain injury making that party easily influenced and even when one party was too drunk to give valid consent.
In certain cases, fraud may be ground for annulment. If the fraud induced the other party to enter the marriage and the marriage has not been consummated, it is voidable. But, if the marriage was consummated, it is much more difficult to annul the marriage.
In some cases, action of the parties can bar them from obtaining annulment. A party can be barred when that party knew of the defect at time of the marriage and entered the marriage anyway. If a party discovers the defect and takes no action for a considerable amount of time, the party may also waive claim that the marriage should be annulled.
In contrast to proving a marriage is irretrievably broken for purposes of divorce, establishing a ground for annulment can be difficult, especially since the ground is often waived by action of the parties. If you feel your situation qualifies for annulment, you should discuss your facts and circumstances with an experienced attorney.
By: William G. Morris, Esquire.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722 or
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