Most couples that want out of a marriage in California usually file for Divorce. There are circumstances though that allow a couple to have their marriage “voided” rather than “dissolved.” There is a big difference between the two concepts. With a voided marriage, it restores the couple to status of unmarried person as if they have never been married before. In a divorce, the couple would always be regarded to as married during the period of the marriage.
Unlike Divorce which can be obtained regardless of the reason. Voiding a marriage may only be obtained based on certain grounds. It is void in cases of incest and bigamy. It is voidable in cases of minority, Unsound Mind, Fraud, Force, or Physical Incapacity. Marriages between parents, children, ancestors and descendants, brothers and sisters, half brothers and sisters, uncles and nieces, and aunts and nephews are incestuous and are void from the beginning. So are bigamist marriages where either party was still married to another person when they entered the marriage. Nevertheless, it is best to obtain a Nullity Judgment to clarify the legal status of the parties under these circumstances.
Certain situations does not necessarily make a marriage void but makes it voidable on the parties option. One such circumstance is when the petitioner was under 18 years old when the petitioner married and the parents did not provide their consent. The Nullity petition based on this ground has to be filed within four years after the party turns 18. The parent of the minor may also file the Petition provided it is filed prior to the minor turning 18. Another situation is a bigamist marriage where the first spouse has been absent and not known to be living for 5 years prior to the second marriage or if the party believed the spouse to be dead at the time of the second marriage. A Nullity based on this ground may be filed during the life of the other party.
A marriage may be voided if either party was of unsound mind at the time of the marriage. Unsound Mind means a person is incapable of understanding the nature of the marriage contract and the duties and responsibilities it creates which depends on the degree of mental capacity of the party. This may not be a ground if the party later on came to reason yet continued to freely cohabitate with the spouse.
Fraud is another ground for voiding a marriage. The false representation or concealment must relate to a substantive matter and directly affect the purpose of the party deceived in entering the marriage. The fraud must go to the very essence of the marital relation before it is sufficient for an annulment. It is not sufficient simply to contend that your spouse turned out to be a lazy, drunken disappointment. Nullity based on fraud has to be filed within four years of discovering the fraud.
Certain marriages that are entered into by force are voidable. Circumstances that meet these standards requires that the forced party’s free will to have been overcome by the spouse such as through the use of threats. These type of Nullity must be filed within four years from the date of marriage. A marriage where the spouse was found to be incapable of physically engaging in copulation may be voided. It can only be filed by the spouse that does not have the physical incapacity and must be filed within four years of the marriage. Before deciding weather a divorce is the appropriate avenue to end your marriage, parties should evaluate if a Nullity is a viable alternative and weather it serves their best interest.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]. Visit our website at kenreyeslaw.com
