A petition for nullity of a marriage is based on an allegation that an impediment existed at the time of the marriage that prevented the marriage from ever existing. Whereas a petition for dissolution of a marriage typically alleges that some issue arose during the marriage that precludes it from continuing further (i.e. “irreconcilable differences”), a petition for nullity focuses on an issue which existed at the time of the marriage which makes the marriage “void” or “voidable.”
A marriage is “void” if it is incestuous or bigamous. A marriage is incestuous if it is between a parent and child, ancestors and descendants, brother and sister, half brother and half sister, uncle and niece, or aunt and nephew. A bigamous marriage is generally one where a person who had a prior marriage marries a subsequent time before termination of the prior marriage. Incestuous and bigamous marriages are considered to be against public policy; they are deemed “void” from a legal perspective and to have never existed. Accordingly, technically speaking, parties to a “void” marriage may simply go their separate ways without any further legal action. However, from a practical standpoint, a nullity judgment should be obtained for formality and to officially declare the marriage “void.”
On the other hand, a marriage may be considered to be “voidable” at the option of one of the parties. Voidable marriages do not violate public policy, and typically focus on one party’s lack of consent in entering into the marriage. A party may seek to nullify a marriage on the basis that he/she did not freely and voluntarily consent to marry—the “consent” was a result of an unsound mind, fraud, force, or physical incapacity. It is important to note that a petition to nullify a voidable marriage has certain time limitations prescribed by the Family Code. Further, the grounds for nullity may be lost if a person finds out about the impediment (for example, a spouse finds out about the fraud which resulted in her “consenting” to the marriage), yet continues with the marriage.
A judgment of nullity has certain advantages and disadvantages over a dissolution judgment. One advantage of nullity is that it does not have the residency requirements imposed on one who is seeking dissolution. The requirement that a person live in the county for three months and in the state for six months prior to the filing of a dissolution proceeding does not apply to one who petitions for nullity. In addition, no waiting period exists for the finality of a nullity judgment—the parties are restored to single-person status upon entry of the judgment. With dissolution, each party must wait a minimum of six months prior to restoration of single-person status. Further, a spouse who would be subject to support obligations post-divorce is not subject to payment of support after a nullity judgment. In addition, in that the general rule is that there is no community property absent a valid marriage, a party who has more assets may seek to invalidate the marriage to make his/her spouse’s claim of a community interest more difficult.
However, nullity also brings with it certain disadvantages. Unlike a no-fault divorce, nullity often requires that one party prove an element of fault (for example, fraud which induced a party to enter into the marriage), and as a result, is often more hotly-contested than a dissolution proceeding. In addition, a party seeking support and division of property in a nullity proceeding has the burden of showing that he/she qualifies as a putative spouse. Accordingly, given the foregoing advantages and disadvantages, it is advised that one consult with an experienced attorney prior to filing a petition.
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Attorney Kenneth Ursua Reyes 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 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]; Website kenreyeslaw.com.
