A question I am frequently asked in my Carlsbad, California family law practice is to explain the difference between an “annulment” or “nullity” and a divorce.  As a divorce lawyer, I have found that the best way to explain any legal concept is to get at what the law tries to accomplish.

In the case of divorce versus nullity, the easiest way to understand the difference is that with a divorce (called in California a “dissolution of marriage”) the court is asked to dissolve a legally valid marriage.  In a proceeding for nullity, the court is asked to declare that the marriage was never legally valid in the first place.

For example, a person can only enter into a valid marriage contract if they consented to the marriage.  If the groom held a gun to the head of the bride and forced her to say the vows and sign the application for marriage license, the bride’s consent would be invalid, because it was procured by force.   As long as she did not live with the groom after the “marriage” freely as husband and wife, she would be entitled to a legal declaration that the marriage never really occurred, or in legalese, was a “nullity.”  The word “nullity” simply means “nothing.”

On the other hand, if our couple in the preceding example were validly married, and there was no coercion or fraud involved, and wife decided after the valid marriage that she couldn’t take the repeated beatings administered by husband, she would seek a “dissolution of marriage,” or what is more popularly known as a “divorce.”  She would file a petition for dissolution of marriage, not a petition for nullity, and she would check a box next to a ground for the divorce, one of which is that she believes that irreconcilable differences have caused the irremediable breakdown of her marriage.  Husband does not have to agree that the marriage is over for wife to obtain a dissolution in this example.

You can get a nullity by showing one of the following grounds:

1.       At the time of marriage, petitioner did not have the legal capacity to consent to the marriage because he/she was under 18 and did not have consent from the parents or did not have permission from the court.

2.      You can’t marry someone else  if you’re already married.  however, there are exceptions.  If  husband or wife from petitioner’s prior marriage was absent and not known to the petitioner to be living for a period of 5 years immediately preceding the date that the second marriage was contracted, the second marriage is considered valid and you can’t get an annulment.

3       You can’t get a nullity if the petitioner’s husband or wife from the prior marriage was generally reputed or believed by the petitioner to be dead at the time the second  marriage.  In that case the second marriage is also valid.

4.    Nullity is available if, at the time of the marriage, either party was of unsound mind, unless the insane person, after coming to his/her senses, freely cohabited with the other as husband and wife.

5.    Nullity is available where consent of the petitioner was obtained by fraud, unless the victim of the fraud freely cohabited with the other as husband and wife after learning of the fraud.

6.      Nullity is available if petitioner’s consent to marry was obtained by force, unless the party whose consent was obtained freely cohabited with the other as husband or wife.

7.      Nullity is available if either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.  For example, if husband was impotent at the time of the marriage and unable to consummate the marriage, and that impotence can be proved incurable, the marriage may be declared a nullity.

Both nullity and dissolution are available on the same petition, the FL-100.  You should carefully consider the legal implications of a declaration that your marriage was invalid from the start.  For example, property acquired by either party to a valid marriage is generally considered to be community property, subject to division on dissolution of the marriage.  However, generally, property acquired by a party to an invalid marriage remains his or her separate property.

Hoping this clears up the confusion surrounding dissolution and nullity, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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