What Is an Annulment?

An annulment, formally called a nullity of marriage in California, is a court order declaring that a marriage is invalid. Unlike a divorce, which ends a valid marriage, an annulment treats the marriage as though it never legally existed. Annulments are relatively rare because the grounds are narrow and must be proven by the party seeking the annulment.

California distinguishes between two types of invalid marriages: void marriages and voidable marriages. A void marriage is one that was never legally valid from the start and can be challenged by anyone at any time. A voidable marriage is one that is valid until a court declares it invalid based on specific grounds. Understanding this distinction is important because it affects who can seek the annulment, when it must be sought, and what defenses may be available.

Void Marriages

A void marriage is one that is invalid from its inception. Under California law, there are two grounds for a void marriage: incest and bigamy.

Incestuous marriages between close blood relatives are void under Family Code section 2200. This includes marriages between parents and children, siblings, half-siblings, uncles or aunts and nieces or nephews, and other close blood relations specified by statute.

Bigamous or polygamous marriages are void under Family Code section 2201. If either party was already legally married to someone else at the time of the marriage, the subsequent marriage is void. There is an exception if the prior spouse has been absent for five years and is not known to be living, or if the prior spouse is generally reputed to be dead.

Because void marriages are invalid from the start, no court action is technically required to establish their invalidity. However, it is advisable to obtain a court judgment of nullity to clear the record and resolve any related issues of property, support, or custody.

Voidable Marriages: Grounds for Annulment

A voidable marriage is valid until a court declares it invalid. California Family Code sections 2210 through 2212 establish the following grounds for annulment of a voidable marriage.

Age: A marriage is voidable if either party was under the age of 18 at the time of the marriage and did not have proper consent. The underage party, their parent, or guardian may seek annulment. However, this ground is waived if the underage party freely cohabitated with the other spouse after reaching the age of 18.

Prior existing marriage: If a former spouse was absent and not known to be living at the time of the marriage and the absent spouse was generally reputed to be dead, the marriage is voidable rather than void. The party with the prior existing marriage must seek the annulment.

Unsound mind: If either party was of unsound mind at the time of the marriage, meaning they lacked the mental capacity to understand the nature of the marriage and the obligations it creates, the marriage is voidable. The party of unsound mind, their conservator, or a relative may seek the annulment. This ground is waived if the party of unsound mind freely cohabitated after regaining capacity.

Fraud: A marriage is voidable if one party’s consent was obtained by fraud. The fraud must go to the essence of the marriage relationship. California courts have found fraud in cases involving misrepresentation about the intent to have children, concealment of an inability to consummate the marriage, concealment of a criminal record, and misrepresentation about immigration status when the marriage was entered into solely for immigration purposes. The defrauded party must seek the annulment and must not have continued to cohabit with the other spouse after discovering the fraud.

Force: A marriage is voidable if one party’s consent was obtained by force. This includes physical force, threats, or duress that overcame the party’s free will. The party whose consent was obtained by force must bring the action.

Physical incapacity: A marriage is voidable if one party was physically incapable of consummating the marriage at the time of the marriage and the incapacity appears to be incurable. The other party must bring the action and must not have known of the incapacity before the marriage.

Statute of Limitations for Annulment

Unlike divorce, which can be filed at any time, annulment actions based on voidable marriages must be filed within specific time limits. For age, the action must be filed before the underage party turns 22. For unsound mind, the action must be filed before the death of either party. For fraud, the action must be filed within four years of discovering the fraud. For force, the action must be filed within four years of the marriage. For physical incapacity, the action must be filed within four years of the marriage.

If the deadline passes, the voidable marriage becomes fully valid and can only be ended by divorce or legal separation. There is no statute of limitations for void marriages based on incest or bigamy.

The Annulment Process

The annulment process begins by filing a Petition (FL-100) and checking the box for nullity. The petition must state the specific ground for annulment. The other party must be served and has the opportunity to respond.

The burden of proof is on the party seeking the annulment. You must present evidence establishing the grounds, for example, evidence of fraud, lack of capacity, or a prior existing marriage. If the other party contests the annulment, the case will proceed to trial where the judge will determine whether the grounds have been proven.

If the court grants the annulment, it will also address related issues including child custody and support (children of an annulled marriage are still considered legitimate), property division (the court may apply quasi-marital property rules under Family Code section 2251 if one or both parties believed in good faith that the marriage was valid), and spousal support (a putative spouse, one who believed in good faith that the marriage was valid, may be entitled to support).

Putative Spouse Doctrine

An important concept in annulment cases is the putative spouse doctrine. Under Family Code section 2251, if a court determines that a party had a good faith belief that the marriage was valid, that party is treated as a putative spouse and may be entitled to many of the same rights as a legal spouse, including an equitable division of quasi-marital property and spousal support.

The putative spouse doctrine protects innocent parties who entered into a marriage believing it was valid, only to later discover a defect that renders it void or voidable. The doctrine reflects California’s policy of protecting parties who acted in good faith.

When to Consider Annulment vs. Divorce

Annulment is only available when specific grounds exist. If your situation does not fit within the statutory grounds, divorce or legal separation is your only option. Even when annulment grounds may exist, many people choose divorce because it is there is no burden of proof.

Disclaimer: This article on California family law is published for informational purposes and does not constitute legal advice. Family law issues are fact-specific and complex. Consult with a licensed family law attorney for specific advice about your case.