Annulment Of New York Marriage

I. RESIDENCY REQUIREMENT

Under New York Domestic Relations Law (hereinafter referred to as “DRL”) an action to annul a marriage, or to declare the nullity of a void marriage, may be maintained when one or both of the parties is a resident of the State of New York for a particular period of time as specified by statute. See DRL § 230.

An action to annul a marriage, or to declare the nullity of a void marriage may be maintained only when one of the following events is satisfied (note you only need to satisfy one):

• The parties were married in the state and either party is a resident of the state when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
• The parties have resided in this state as husband and wife and either party is a resident of the state when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
• The cause occurred in the state and either party has been a resident of the state for a continuous period of at least one year immediately preceding the commencement of the action, or
• The cause occurred in the state and both parties are residents of the state at the time of the commencement of the action, or
• Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

VOID AND VOIDABLE MARRIAGES

There are essentially two types of marriages that can be annulled: (1) marriages that are voided from their inception because of some public policy; and (2) marriages that are voidable upon a decree of the court.

A. Void Marriages

A void marriage is either an incestuous, bigamous or a marriage which was not performed by someone authorized to perform marriages according to New York Domestic Relations Law § 11. These marriages are said to be void ab initio, that is, the marriage was never legal, and a party can terminate the marriage by simple leaving the relationship. A court declaration is not necessary, however, a party desiring certainty and a record can seek a court decree voiding the marriage. See DRL § 140.

1. Declare Nullity of Bigamous Marriage

An action to declare the nullity of a void marriage upon the ground that the former spouse of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former spouse. See Nani v. Nani, 120 Misc. 249, 198 N.Y.S. 207 (1923).

Under New York Penal Law § 255.15 bigamy is a class E felony. A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse. If the defendant acted under a reasonable belief that both he and the other party to the marriage were unmarried the defendant has an affirmative defense to the charge of bigamy. See Penal Law § 255.20.

Even the guilty party is permitted to bring an action to void a bigamous marriage. See Gonzalez v. Gonzalez, 34 Misc.2d 193, 228 N.Y.S.2d 4 (Sup. Ct. Queens County 1962). The other spouse from the prior marriage is also permitted to bring the action, without regard to whether one of the parties to the bigamous marriage has died.

2. Declare Nullity of Incestuous Marriage

New York Domestic Relation Law § 5 defines an incestuous and void marriage. A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:

• An ancestor and a descendant;
• A brother and sister of either the whole or the half blood;
• An uncle and niece or an aunt and nephew.

DRL § 5 makes incest is a misdemeanor. A party to an incestuous marriage solemnized in New York is subject to a fine and to a term of imprisonment of up to six months. Similarly, a person who knowingly and willfully solemnizes the marriage is guilty of a misdemeanor and is also liable for fine and imprisonment. See DRL § 5.

In addition, New York Penal Law § 255.25, make incest a Class E felony. A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

Therefore, incestuous marriages are void and no action is strictly needed to declare void an incestuous marriage.

B. VOIDABLE MARRIAGES

In contrast to a void marriage, in order to annul a voidable marriage it is always necessary to bring a court action. While the granting of an annulment will hold the marriage void ab initio, the marriage remains valid--but voidable--until the annulment is granted. See United States v. Diogo, 320 F.2d 898 (2nd Cir. 1963). Furthermore, there is no absolute right to have a voidable marriage annulled. It remains in the court’s sound discretion whether to grant an annulment of a voidable marriage. See Selakoff vs. Selakoff, 92 N.Y.S.2d 144, 196 Misc. 544 (Sup. Ct. N.Y. County 1949); Remlein v. Remlein, 54 N.Y.S.2d 323 (Sup. Ct. N.Y. County 1945).

A MARRIAGE IS VOIDABLE UNDER ANY OF THE FOLLOWING CIRCUMSTANCES:

1. Party Under Age of Consent

An action to annul a marriage on the ground that one or both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person as the next friend of the infant.

The New York legislator fixed the age of legal consent to marriage at 18 years, which is also the age of majority. See DRL § 7(1), DRL § 2, and CPLR 105(j). Where a person under 18 marries, the marriage is not rendered absolutely void by reason of nonage; instead, the marriage is voidable.

The court will not annul the marriage of a party who was of the age of legal consent when it was contracted. Also a marriage may not be annulled by a party who for any time after he or she attained the age of 18 freely cohabited with the other party as husband or wife.

The marriage of a minor who is a domicile or resident of New York in another State, while s/he was under the age of legal consent, without the knowledge or consent of her/his parents, remains voidable, even if the marriage would be recognized as valid in the jurisdiction where contracted. See Cunningham v. Cunningham, 206 N.Y. 341 (1912).

2. Party a Mentally Retarded Person or Mentally Ill Person

• An action to annul a marriage on the ground that one of the parties was a mentally retarded person may be maintained at any time during the lifetime of either party by any relative of a mentally retarded person, who has an interest to avoid the marriage. It is quite interesting to know that the statute does not permit a spouse of sound mind to bring an action for an annulment on the ground of the other spouse's mental retardation. See DRL § 140(c).
• An action to annul a marriage on the ground that one of the parties was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by:
  
  -> any relative of the mentally ill person who has an interest to avoid the marriage;
  -> the mentally ill person at any time after restoration to a sound mind, see Verstanding vs. Schlaffer, 296 N.Y. 62, 79 N.E.15 (1946); but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and wife after the mentally ill person was restored to a sound mind.
  
• Where one of the parties to a marriage was a mentally ill person at the time of the marriage, an action may also be maintained by the other party at any time during the continuance of the mental illness, provided the plaintiff did not know of the mental illness at the time of the marriage.
• Where no relative of the mentally retarded person or mentally ill person brings an action to annul the marriage and the mentally ill person is not restored to sound mind, the court may allow an action for that purpose to be maintained at any time during the life-time of both the parties to the marriage, by any person as the next friend of the mentally retarded person or mentally ill person.

In order for a relative to have standing to annul a marriage, the relative must have an interest in avoiding the marriage, such as by standing to gain a greater inheritance if the marriage is set aside. See Farnham v. Farnham, 227 N.Y. 155 (1919); Tabak v. Garay, 237 A.D.2d 510, 655 N.Y.S.2d 92 (2nd Dep’t 1997).

So long as the spouse who is alleged to be under a disability is alive, the spouse must be made a party to the action irrespective of whether the action is based upon a spouse's mental retardation or mental illness. See DRL 140 (c); Coddington v. Larner, 78 N.Y.S. 276 (1st Dept 1902).

3. Physical Incapacity

An action to annul a marriage on the ground that one of the parties was physically incapable of entering into the marriage state may be maintained by the injured party or the incapable party. However, the incapable party must have been unaware of the incapacity at the time of marriage, or if aware of the incapacity, did not know it was incurable. Such an action can be maintained only where an incapacity continues and is incurable, and must be commenced before five years have expired since the marriage. See DRL 140(d).

4. Consent by Force, Duress or Fraud

An action to annul a marriage on the ground that the consent of one of the parties was obtained by force or duress may be maintained at any time by the party whose consent was obtained by force or duress. The action may also be maintained during the lifetime of the other party by the parent, or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage. See DRL § 140 (e). If action is to annul a marriage on the ground of fraud the plaintiff or defrauded person must commence the action within the limitation prescribed in the civil practice law and rules has not run. See Mienik v. Mienik, 91 A.D.2d 604, 456 N.Y.S.2d 424 (2d Dep’t 1982).

Under CPLR 21(7) a party has three years from the date of discover of the facts constituting fraud to annul a marriage. If the plaintiff is someone other than the party who was the victim of the fraud, such as a parent of the defrauded party, the time is measured from the time that the defrauded spouse discovered the fraud, if the defrauded party discovered the fraud sooner than the plaintiff did.

However, if at anytime before the commencing of the action the parties voluntarily cohabited as husband and wife that marriage shall not be annulled on the ground of force or duress. Similarly, if the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud at any time before commencement of the action the marriage shall not be annulled on the ground of fraud.

5. Incurable Mental Illness for Five Years

An action to annul a marriage upon the ground that one of the parties has been incurably mentally ill for a period of five years or more may be maintained by or on behalf of either of the parties to such marriage. See DRL 140(f).

Non-disabled spouse in his or her own name may commence the action. However, only a guardian my act on behalf of the disabled spouse to commence the action. See Weinberg v. Weinberg, 255 A.D. 366, 8 N.Y.S.2d 341 (4th Dep’t 1938); Matter of Johnson, 172 Misc.2d 684, 658 N.Y.S.2d 780, 1997 N.Y. Slip Op. 97219 (Sup. Ct. Suffolk County 1997). A committee of an incompetent may not do so. See Kaplan v. Kaplan, 256 N.Y. 366, 176 N.E. 426 (1931).

The cause of action may be maintained beyond five years of incurable mental illness but before the disabled spouse returns to sound mind. See Blauvelt v. Blauvelt, 182 Misc. 618, 47 N.Y.S.2d 154 (Sup. Ct. Kings County 1944); Weiss v. Weiss, 31 Misc.2d 256, 221 N.Y.S.2d 296 (Sup. Ct. Nassau County 1961).

EQUITABLE DISTRIBUTION AND ANULLMENT

A party may seek equitable distribution of marital property pursuant to Domestic Relations Law section 236B in an action to annul a marriage. See DeLyra v. Delyra, 74 N.Y.2d 872, 547 N.Y.S.2d 830, 547 N.E.2d 85 (1989; Matter of Johnson, 658 N.Y.S.2d 780, 172 Misc. 684, 1997 N.Y. Slip Op. 97219 (Sup. Ct. Suffolk County 1997).

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