ANNULMENT

 

ANNULMENT

 

IN GENERAL

Annulment is a procedure to nullify  or dissolve a marriage on grounds which affects the marriage from its inception. It is usually retroactive and legal effects on matters such as property relations and status of legitimacy of children are resolved from the perspective of a marriage that is void ab initio  ( or from the very beginning), unlike a  divorce which is prospective in nature and the legal effects of which considers the validity of the marriage before the divorce was obtained.

Strictly speaking, however, annulment applies to cases of valid but voidable marriages. Examples are coerced marriages or those celebrated under duress or those undertaken because of fraud such as the pregnancy of the spouse by a man other than the husband who was told that the child was his.

A distinction is often made in some jurisdictions with a Declaration of Nullity which involves marriages which are void from the beginning, such as bigamous, incestuous, or group marriages or when one of the parties is a minor or below the threshold age to marry under the law. These marriages theoretically can be declared null and void  ex officio , or even without the participation of the parties being imbued with public policy or morality while annulment in the strict sense requires the participation of at least one of the parties, usually the innocent or offended spouse.

A  hybrid type of annulment is one grounded on very wide parameters. In the Philippines, for example, a marriage can be nullified on the basis of “psychological incapacity” which has a wide meaning under Philippine law, ranging from the very same grounds as those provided under the Catholic Canon Law to varying interpretations by the courts in an effort to  reconcile the religious and cultural contexts with the legal realities. The Catholic Church has always considered “annulment” as properly a “declaration of nullity”. A marriage in the Catholic concept is a sacrament that cannot be dissolved while the parties are alive. Thus, the vow repeated in Catholic marital rites  of “till death do us part”.  The Catholic church has viewed the dissolution of the marriage more as a declaration that it is null and void to begin with than an annulment or a nullification. In fine, it is a declaration that there was no marriage than a dissolution of an existent marital union.

  

 

ANNULMENTS  AROUND THE WORLD

 

UNITED STATES

The laws governing annulment typically vary between the states in the US. Either the husband or the wife can initiate the annulment process, so long as the party initiating the annulment can prove that he or she has sufficient grounds to do so; if it can be proven, the marriage will be considered null and void by the court. The common grounds for annulment can be seen below:

  1. Bigamy – Either party was already married to another person at the time of the marriage.
  2. Forced Consent – The court may grant an annulment of marriage if the other party was forced to induce the petitioner to enter into the marriage through the use of force or duress, and the petitioner has no voluntarily cohabited with the other party since he or she was released from the force or duress.
  3. Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other
  4. Marriage Prohibited By Law – marriage between parties that are based on their familial relationship is considered incestuous. This ground is based on public policy consideration.
  5. Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage. This ground may be availed of if (1) at the time of the marriage, a party did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect; and (2) since the marriage ceremony, petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.[1]
  6. Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent
  7. Impotency – either spouse, for physical or mental reasons, was permanently impotent of having sexual relations during the marriage, and the petitioner was not aware of such fact and that the latter did not cohabit voluntarily upon learning the impotency.
  8. Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval. In this case, annulment must be obtained while the underage spouse is still a minor, or shortly after the underage spouse reaches the age of majority, otherwise, this ground may be deemed waived. [2]

State of New York

The State of New York offers both annulment and divorce, whether no fault or at fault, as a remedy for spouses who want to nullify their marriage. Hence, the process is easier compared to that of the Philippines. Generally, those who seek to obtain the remedy of annulment are those whose grounds are rooted to fraud, which is the inducement on Petitioner to marry based on lies or misrepresentations of the other. The effectivity of the New Divorce law which allowed the “no fault” divorce law, which was signed on August 15, 2010 by Governor David Paterson, allows the parties to nullify the marriage on the ground that “the relationship between the husband and wife has broken down irretrievably for a period of at least six months”.

State of Nevada

There are limited grounds for getting an annulment in Nevada, which can be seen below:

  1. lack of consent of a parent or guardian if consent was required
  2. lack of understanding or insanity by either spouse
  3. fraud, or misrepresentations, by either party that induced the other to marry
  4. the marriage is illegal based on familial relationship
  5. Bigamy

In order to file for an annulment in Nevada, either party must have lived in Nevada for at least six weeks prior to filing or the parties must have gotten married in Nevada. Hence, if the spouses married in Nevada, there is no need to procure proof of residency requirement.

ENGLAND AND WALES

In order to avail of the annulment mechanisms in the laws of England and Wales, either spouse must have been living in England/ Wales for at least a year; or had a permanent home in England or Wales for at least 6 months.  Parties in this instance must show that the marriage was either not valid in the first place, or is defective for one of the grounds provided below:

  1. “Void” marriage – These are marriages which are not legally valid in the first place due to the ff. reasons:
  2. Parties are closely related by blood relationship (Incestuous marriage)
  3. one or both parties were under 16 (Underage marriage)
  4. Either parties were already married or in a civil partnership (Bigamy)
  5. “Voidable” marriage – These are marriage which are defective and hence may be the object of annulment. The ff. are grounds for a voidable marriage:
  6. Unconsummated marriage – The parties did not have sex with the other since the marriage ceremony. This does not apply however for same sex couples;
  7. Lack of consent to the marriage – This ground exists if petitioner was induced to enter into the marriage through the use of force or duress, or either spouse was under the influence of alcohol or drugs at the time of the marriage;
  8. The other spouse had a sexually transmitted disease at the time of the marriage, and it was not disclosed to the other spouse; or
  9. The woman was impregnated by another man at the time of the marriage.

AUSTRALIA

The Family Law Act of 1975 governing nullity of marriages in Australia only allows a void, not voidable marriage, to be declared null and void by the Family Court of Australia and the Family Court of Western Australia[3]. Simply put, a decree of nullity giving rise to an annulment of marriage is an order of the court which says that there is no legal marriage between the parties. The following are the recognized grounds to declare a marriage null and void:

  1. One of the parties was still validly married to someone else at the time of the marriage.
  2. The parties are in a prohibited relationship. Marriage may not take place between direct descendants (such as parent or grandparent and child) or siblings (including half-siblings) including adopted (by law) relationships.
  3. The parties did not comply with the laws in relation to the marriage in the place they were married, such as using a celebrant not authorized to perform marriages.
  4. One or both of the parties was not old enough to marry.
  5. One of the parties did not give their real consent to the marriage. This could be because their consent was obtained by duress or fraud, or because one party was mistaken as to the identity of the person that they were marrying or did not realise that they were being married or where one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

To be eligible to apply for a decree of nullity in Australia to effect an annulment of marriage, at least one of the parties must either: (1) be an Australian citizen; (2) live in Australia and consider Australia to be their permanent home; or (3) ordinarily live in Australia and have done so for at least 12 months before the application.

An annulment can only be granted in limited circumstances. If those circumstances do not apply, then the parties will need to be separated for 12 months and apply for a divorce if they wish to end the marriage. [4]

FRANCE

The Family Law provides for the annulment of marriage when the essential conditions for the formation of marriage are not met. Hence, a marriage can be annulled if the consent of one of the spouses was defective, notably in the case of:

  1. An error concerning the identity of one of the parties;
  2. An error concerning substantial characteristics of the person (in that case, the error must meet both a subjective criterion (the error must have been a determining factor of the party’s consent) and an objective criterion (the error must be “sociologically determining”); and
  3. Duress or use of force to induce the party to enter into a marriage against his/her will.

A marriage can also be annulled due to a lack of authorisation on the part of the legal representative (in the case of a minor, for example). An annulment on the basis of lack of consent or lack of authorisation on the part of the legal representative can only be sought by one of the spouses, the Public Prosecutor or by the parties whose authorisation was required.

In addition, nullity can be pronounced on several grounds that concern public policy, such as the non-respect of the minimum age to marry, bigamy, incest, absence of one of the spouses, and so on. Nullity can also be pronounced due to lack of matrimonial intention. This is generally used to invalidate marriages concluded only for immigration purposes. Nullity can then be sought by the spouses themselves, the Public Prosecutor or any person who has an interest in the action. If one spouse entered into the marriage in good faith, they may benefit from the rules of putative marriage, maintaining the benefits of the effects of the marriage (for example, to be able to obtain a compensatory benefit as in divorce cases).

Under the French family law, to be able to procure the process of annulment in France, the following requirements must be met:

  1. The family was living in France and one of the spouses still lives in France.
  2. The spouse living with the children is habitually resident in France.
  3. The defendant resides in France.[5]

CANADA

Under the Family Law Act of Canada, spouses can seek an annulment if one of the following issues at the time of the marriage are present:

  1. one spouse was already married to someone else
  2. one spouse was under the age of 18 and married without parental permission
  3. the marriage was entered into under duress, fear, or fraud
  4. one spouse lacked the mental capacity to understand the basic meaning of marriage
  5. one or both spouses was intoxicated during the marriage ceremony and was not able to give consent
  6. the spouses were too closely related to each other by blood or adoption

A marriage can also be annulled if one spouse was unable to, or refuses to, consummate the marriage. Consummation means the spouses must have had sexual intercourse with each other, at least once, after being married. If, before the marriage, one spouse knew that the other never intended to have intercourse, the ground of non-consummation will not apply.[6]

JAPAN

Under the Japanese Civil Code, a marriage may be annulled in cases where:

  1. A man is below full 18 years of age, or a woman is below full 16 years of age;
  2. A party who has effected an earlier marriage;
  3. The parties are relatives by blood, or collateral relatives by blood up to the third degree of relationship;
  4. The parties are lineal relatives by affinity;
  5. The parties have an adopter-adoptee relationship
  6. A woman married when only less than six months had elapsed from the day of the dissolution or annulment of her previous marriage.

In such cases as cited above, an application may be made to the Court for its annulment of either party thereto, any of each party’s relatives or a public procurator, but the latter need not file an application after the death of either of the parties.

The parties may also file for an annulment if one of the parties induced the other by fraud or duress to effect a marriage. [7]

It must be noted that filing a divorce in Japan is easy and may be done by mutual consent through a process known as kyogi rikon, wherein one or both of the parties sign a divorce notification paper, stamp or sign and have it submitted in the city or municipal hall office. Both parties do not have to go to the city hall together to present the document; it can also be submitted by a third party.[8]

 ITALY

Under the Civil Code of Italy, a marriage may be invalidated for any of the following reasons:

  1. One of the spouses was still in a previous marriage;
  2. Impedimentum criminis: a marriage is entered into by two people one of whom has been convicted of the murder or attempted murder of the spouse of the other. In this case, the marriage cannot be contracted owing to the mental infirmity of one of the spouses;
  3. One of the spouses was not of sound mind (incapacità naturale); the marriage can be challenged by a spouse who, though not certified as incompetent, proves that he or she contracted the marriage while of unsound mind;
  4. One of the spouses was under age;
  5. There were ties of kinship, affinity, adoption or affiliation;
  6. Duress, fear and error: consent was extorted under duress, or was due to exceptionally serious fear of events outside the spouse’s control; or there was mistaken identity, or an error regarding an essential personal prerequisite of the other spouse, pursuant to Section 122 of the Civil Code; and
  7. Simulation: the marriage may be contested by either of the spouses where they contracted marriage having agreed not to meet the obligations or exercise the rights deriving from it. [9]

For the Italian courts to have the power to issue an annulment of the marriage: (1) both spouses should be Italian citizens, (2) defendant is either domiciled or resident in Italy, (3) has a representative who is authorised under Article 77 of the Civil Procedure Code to be brought to trial in Italy, (4)  one of the spouses is an Italian citizen, or (5) marriage has been celebrated in Italy.[10]

MIDDLE EAST COUNTRIES

In Middle East countries such as Dubai, the Courts have approved the issuance of a certificate of annulment of marriage contracts between non-Muslims. The said legal procedure will not take more than one day. [11]Since Divorce in Dubai is an acceptable act among Muslims, which follows the rulings under the Shari’a Law, the legal procedure is much easier, so long as sufficient proof can be presented that the marriage is no longer working out.

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[1] https://web.archive.org/web/20130621182208/http://texaslawhelp.org/files/685E99A9-A3EB-6584-CA74-137E0474AE2C/attachments/08287A62-D00E-4055-9671-7912493DDFDD/annul-_kit_final.pdf

[2] https://www.legalzoom.com/articles/whats-the-legal-difference-between-annulment-and-divorce

[3] http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/nullity/

[4] https://www.gotocourt.com.au/family-law/annulment-of-marriage/

[5] https://uk.practicallaw.thomsonreuters.com/6-615-3545?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1#co_anchor_a500510

[6] http://www.canadiandivorcelaws.com/annulment/

[7] http://www.international-divorce.com/japan_civil_code.htm

[8] https://www.japantimes.co.jp/community/2013/10/07/how-tos/getting-a-dodgy-divorce-is-easy-annulling-the-decision-is-anything-but/#.W2g9dVUzbIU

[9] https://e-justice.europa.eu/content_divorce-45-it-maximizeMS_EJN-en.do?member=1#toc_7

[10] https://uk.practicallaw.thomsonreuters.com/9-564-8565?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1#co_anchor_a499006

[11] http://www.mublegal.com/article-2-july-2014-divorce-facts-in-uae/

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