Annulment is the judicial pronouncement declaring a marriage invalid. A few ideas must be kept in mind in order to understand the concept of annulment and how it differs from divorce:
- Every society establishes rules of conduct for its members relating to behavior that affects the common good. Marriage is an institution designed to enable people to establish stable primary intimate relationships that potentially involve the procreation and rearing of children. While the right to marry is fundamental, each society passes legislation to control and restrict the exercise of this right.
- The rules governing the valid contracting of legal obligations are not necessarily shared by other social units and vary from society to society. If an individual belongs to multiple social units, the validity of contracts entered into by persons who choose to remain part of that social unit is governed by the laws passed by the legitimate authority of that unit.
- If the requirements that have been established by the legally binding authority of the social unit and that are in existence at the time of entering the contract are not fulfilled, the contract is considered null and void from its outset.
- The marriage ceremony takes place in a specific geographic locale. The requirements and regulations established by the state where the exchange of vows takes place may refer to the radical capacity or ability of persons entering marriage to take on the responsibilities and enjoy the rights of marriage (i.e., age and mental competence), the specific form that must be followed (i.e., valid license and official minister who is to witness the exchange of vows), or other regulations that fall into a questionable area between the basic ability or capacity to enter marriage and the format required (i.e., gender of the contracting parties). Whatever the category of requirement or regulation, if all norms so determined by the state are not followed, the contract is null and void, invalid; no marriage exists and no rights or obligations are incurred.
Divorce Versus Annulment
Before persons can enter another marriage after they have exchanged vows in a marriage ceremony, the prior marriage must be liquidated. To sever the chains of matrimony or "untie the knot," the case must be adjudicated in a civil court that handles either divorce or annulment.
Divorce presupposes that a valid marriage was entered into by the parties involved and ends a marriage as of the date the divorce decree becomes final. Divorce per se has no effect on the legitimacy of children born of this union or on a claim for alimony.
Annulment implies that a valid marriage never took place because of the inability to perform the responsibilities of marriage. The parties are considered to lack the ability to give valid consent if, at the time and in the place where the marriage ceremony was performed, there was some defect, impediment, or lack of capacity preventing a legal marriage between the parties concerned. When this fact is so judged by legal authority (adjudicated), the legal judgment implies that the marriage is voided from its inception. Unless altered by statute, annulment has the legal effect of rendering the children born of this union "illegitimate." A claim for alimony would also be invalid unless the rule is changed by statute or judicial decision.
State legislatures have tended to confuse the distinction between divorce and annulment as they enact divorce statutes. Divorce serves as a substitute for annulment in those jurisdictions that have no statutes allowing courts to grant annulments and becomes a catchall for cases involving such issues as bigamy and impotency.
Grounds for Annulment
The statutes or legislation that determine the impediments to a valid marital contract are not uniform from state to state, and the grounds for annulment vary from one jurisdiction to another. In every case, however, these grounds must be clear, strong, and convincing before an annulment court will issue a decree of nullity following legal proceedings to liquidate a marriage. While the rule of law changes from one jurisdiction to another, some reasons why parties are unable to exchange marital consent include:
- failure to follow legal format, such as not obtaining a marriage license or neglecting to fulfill other statutory prohibitions;
- being underage—there is a fixed marriageable age that must be respected;
- gender—most societies permit only heterosexuals to marry;
- consanguinity—a marriage would be considered "incestuous and void" if the parties were related by blood, that is, ancestors and descendants such as father and daughter, brothers and sisters, uncles and nieces, aunts and nephews;
- affinity—a relationship established by marriage, such as stepbrother and stepsister;
- impotency—the incapacity to perform the act of sexual intercourse;
- duress (force and fear)—a valid marriage requires free and willing consent of both male and female;
- fraud (deception)—both parties must intend to assume the contractual obligations; and
- mental disorder or mental deficiency— persons must possess the ability to understand the nature and consequences of the marriage ceremony.
If any of these impediments were present at the time of the marriage and proven in a court of law, a decree of nullity would be issued indicating that no marriage existed.
Historical Link with Church Law
The concept of annulment draws its heritage from the ecclesiastical courts of England and canon law of the Roman Catholic church. In sharp contrast to Roman law, which considered marriage and its dissolution to be determined by the free will of the parties concerned, the Catholic church believes that a valid marriage entered into by two baptized Christians (classified as "sacramental") cannot be dissolved by any human power. Consequently, if a valid marriage is sacramental and consummated through sexual intercourse, it can be dissolved only by the death of one spouse. Hence the focus on annulment to prove some impediment or defect that would render the contract itself invalid from the outset; this would prove that the marriage never existed.
When an individual falls under the jurisdiction of both state and church law because of an affiliation with a specific religious denomination, the rules of law of both state and church become significant.
For those religious organizations that permit divorce, the usual procedure is to recognize the legal authority of the state to dissolve the marriage in civil court. The denominations would then accept the decree of divorce as valid, thereby freeing both parties to remarry according to the rules of both state and church.
The Roman Catholic church does not allow its members to divorce. If Catholics who previously had exchanged marital vows wish to marry a different partner, a lengthy annulment procedure in the ecclesiastical tribunal is usually required. While the state may allow an individual to remarry within its jurisdiction, the church would forbid a new marriage within the church until an annulment procedure had declared the previous marriage null and void. On the other hand, even though the church has issued a "decree of nullity," the state would require a civil procedure to be completed within the divorce court of the state before allowing either of the parties to enter a new marriage.
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A judgment by a court that retroactively invalidates a marriage to the date of its formation.
An annulment differs from a divorce, a court order that terminates a marriage, since it is a judicial statement that there was never a marriage. A divorce, which can only take place where there has been a valid marriage, means that the two parties are no longer husband and wife once the decree is issued. An annulment means that the individuals were never united in marriage as husband and wife.
Various religions have different methods for obtaining a church divorce, or annulment, but these procedures have no legal force or effect upon a marriage that complied with the requirements of law. Such a marriage must be legally annulled.
English common law did not provide for annulment. Prior to the mid-nineteenth century, the only courts in England with the power to annul an invalid marriage, when fairness mandated it, were the ecclesiastical courts. There was no statute that provided relief of this kind.
Northeastern American colonies passed laws enabling courts or legislatures to grant annulments, while other colonies adhered more closely to English traditions. The American tradition of keeping church and state separate precluded the establishment of ecclesiastical courts in the United States. Following the American Revolution, the civil courts in a majority of states never assumed that they had the authority to hear annulment cases.
A number of states eventually enacted laws authorizing annulment in recognition of the belief that it is unfair to require people to fulfill marital duties when a marriage is invalid.
Currently, most states have annulment statutes. In states that do not, courts declare that no marriage exists if the laws regulating marriage have not been observed.
An annulment declares that a marriage, which appears to be valid, is actually invalid. Two kinds of invalid marriages exist: void marriages and voidable marriages. A void marriage is one that was invalid from its very beginning and, therefore, could never lawfully exist in any way. The major grounds for a void marriage are incest, bigamy, and lack of consent. Once these grounds are established, the court will grant a decree of annulment.
A voidable marriage is one that can be declared illegal but that continues as valid until an annulment is sought. The annulment takes effect only from the time a court renders its decision.
State law governs the grounds for annulling a voidable marriage. Couples should not be obligated by the serious duties incident to marriage if both parties did not genuinely intend to be married.
fraud is the most prevalent ground for annulment. The misrepresentation, whether by lies or concealment of the truth, must encompass something directly pertinent to the marriage, such as religion, children, or sex, which society considers the foundation of a marital relationship.
Physical or emotional conditions may also be grounds for annulment, particularly when they interfere with sexual relations or procreation.
Other health conditions providing grounds for annulment include alcoholism, incurable insanity, and epilepsy. The mere existence of one of these conditions is a sufficient ground for an annulment in some states, whereas in others, an annulment may be obtained for fraud if such a condition was concealed.
Courts may also annul marriages that involved lack of consent, mistake, or duress. Lack of consent might arise if one party were senile, drunk, underage, or suffering from serious mental illness, or if there was no genuine intent to marry. A mistake as to some essential element of the marriage may also justify an annulment, for example, if the couple mistakenly believed that one party's insanity or impotence had been cured. Duress arises when one party compels the other to marry against his or her will.
State law governs the consequences of an annulment. Customarily, an annulment was a court declaration that no marriage had ever existed, but this created various problems. If a marriage was dissolved by divorce, the children of the marriage were legitimate and the parent awarded custody could be awarded alimony. No such provisions, however, were made in an annulment. A majority of states have rectified this situation by statutory provisions. In most states, children of voidable, and sometimes void, marriages are legitimate. In addition, some states provide for alimony and property settlements upon the granting of an annulment. Several other jurisdictions allow their courts to devise a fair allocation of property where necessary and equitable.
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Nelson, William T. 2000. A Treatise on the Law of Divorce and Annulment of Marriage: Including the Adjustment of Property Rights upon Divorce, the Procedure in Suits for Divorce, and the Validity and Extraterritorial Effect of Decrees of Divorce. Holmes Beach, Fla.: Gaunt.
Annulment is the juridical procedure used in the Catholic Church to deal with broken marriages. Although Catholic theology on marriage emphasizes indissoluble monogamy, the Catholic Church has historically affirmed various exceptions to this ideal. From earliest times (New Testament), the "Pauline privilege" allows nonbelievers who subsequently convert to the faith to break their marriage to a nonbeliever and enter a second (sacramental) marriage. New norms enhancing papal power to dissolve marriages (or to remove church impediments to the contraction of sacramental marriages) developed throughout the twentieth century and were codified in the revised Code of Canon Law (1983). Annulments are granted by regional tribunals of the Catholic Church who after a detailed process of deliberation determine that the marriage contracted by the couple in question was not in fact a "valid" marriage. The grounds for nullity are quite broad and reflect Vatican II's (1962–1965) recognition of the psycho-social importance of personally fulfilling relationships. Most annulments are granted on grounds of "defective consent" of one or both partners at the time of the marriage. The absence of full consent may be linked to external pressure to marry (e.g., as a result of pregnancy); to moral or psychological immaturity; to schizophrenia; or to other conditions that inhibit one or both partners' understanding of the emotional and practical obligations of the marriage commitment. Other grounds for nullity include impotence, the existence of a previously valid marriage, ordination, a close blood relationship between the couple, or nonobservance of the correct procedural form for the conduct of the marriage ceremony. Once a marriage is declared null, the partners are free to (re)marry, since in the eyes of the church they have not contracted a previous valid marriage. In some cases, however, the nullity decree granted prohibits an individual from entering a new marriage due to the persistence of a defective condition (e.g., emotional immaturity).
The Catholic Church emphasizes that an annulment is not a divorce. Whereas divorce dissolves a valid marriage, annulment declares that a valid marriage never took place. Nevertheless, annulment can be seen as a response to the increase in civil divorce, providing a channel allowing divorced Catholics and divorced non-Catholics who want to marry Catholics, to remarry with church approval. In practice, annulment is used by divorced Catholics to legitimate a second marriage. Because divorced Catholics who remarry cannot remain full participants in the sacramental life of the church (e.g., they can attend Mass but are prohibited from receiving Communion), they are under pressure to seek to have their first marriage annulled even though both partners may have experienced a happy marriage for many years and/or have children as a result of the marriage. Various opinion polls indicate that more than three-quarters of American Catholics believe that someone who divorces and remarries without church approval can still be a good Catholic. Nonetheless, American Catholics are significantly more likely than divorced Catholics in other Western societies to seek annulments. In 1995, for example, for every hundred American Catholics who divorced, thirty obtained an annulment, whereas the comparable rate for Canadians was fourteen. In light of the fact that marriages break down for a variety of reasons, many of which are unrelated to issues of "defective consent" or other impediments, it may be more pastorally affirming for the church to accept divorced/remarried Catholics as communicants while simultaneously articulating its ideal of lifelong, indissoluble monogamy. In recent years, there has been growing attention to issues related to annulment, brought on by some high-profile cases in the media and public reaction to them.
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