Annulment in California

Annulments in California are very different from divorces. In a divorce, there are no questions about the marriage. You are simply looking to end it and move forward with your life.

In a California annulment however, the marriage, itself, is in question – it’s validity and enforceability. An annulment is like an eraser at the end of a pencil. You are looking to undo what has been done.

Nothing in this article is legal advice. You should not base a decision on your case from an article you read. For that, your specific facts need to be analyzed by the right attorney. Contact our experienced and skilled family law attorneys in Orange County for an affordable strategy session about your annulment.

Annulments in California and the difference between a void and voidable marriage

An annulment, which is also called a judgment of nullity, results from either a void marriage or a voidable marriage. You may be asking,” what is the difference between those two?” Think of a void marriage as one that was never legal or proper. It doesn’t matter whether or not one or both people filed for an annulment. Then, think of a voidable marriage as one that is valid until there is an annulment. Don’t overthink this concept.

Void or voidable, getting a judgment of nullity is important in most situations

Even though a void marriage was never legally valid, it may a bad idea to simply assume you will be protected, going forward. This is particularly important because there are situations where a person in a void marriage could claim certain property rights or even ask for support. Be careful. If there are children involved, it gets more complex due to child custody and related issues.

Should you seek to annul the marriage if it is void? What do you have to gain or lose? It is always best to consult with an experienced family law attorney to decide how to proceed forward, regardless of whether you have a void or voidable marriage.

How to get an annulment in California based on bigamy?

A marriage while either the husband or wife was married to another person is a bigamous marriage. Bigamous marriages are generally considered void but there are exceptions and they are odd but creative and make the bigamous marriage voidable. They are:

For 5 successive years immediately before the bigamous marriage, the prior spouse had been absent and not known to be living; or
At the time of the marriage, the prior spouse was generally reputed or believed to be dead.

It’s not difficult to figure out why these exceptions exist. They create a voidable marriage because there is less fault than actually knowing one is entering into a bigamous marriage. For those reasons, these exceptions have been carved out to allow the marriage to continue until and unless either party wishes to seek an annulment.

That annulment based on current California law which is Family Code 2211(b) allows either party to file for an annulment during the life of the other. The prior spouse who was believed to be dead or was absent can even file for such an annulment.

How to get an annulment in California based on fraud?

This is possibly the most common reason for an annulment. Fraud makes the marriage voidable.

Fraud means that either spouse’s consent to the marriage was obtained by fraud, which is typically either a false representation or concealment that is substantive. What is substantive? That basically means the fraudulent basis for getting married better be an important one and one that goes to the heart and essence of the marital relationship.

There have been many cases in California within our appellate courts that have come down on these issues. We won’t discuss them here but because there is precedent, if we are retained, we can compare your facts with earlier appellate decisions to see if they are helpful in evaluating your annulment case.

What happens if the spouse claiming fraud, after learning about it, continues to live with the other spouse? Family Code 2210(d) answers that question when it states:

A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.

A petition for an annulment based on fraud must be filed pursuant to Family Code 2211(d) “…by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.”

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