What is an annulment?

There are three ways to terminate a marriage in California:  dissolution (divorce), annulment, and death. (See Family Code Section 310).

Under California law, if a marriage is legally void or voidable, then the marriage can be annulled. One reason for why a couple would opt for an annulment rather than a divorce are religious reasons. This is because once a marriage is “null” then the marriage is not recognized as having occurred in several religious communities.
Reasons that a marriage could be found void or voidable include: incest, minority of one of the parties, prior existing marriage, unsound mind, fraud, force, or physical incapacity. (See Family Code Section 2210).  One of the common misconceptions with annulment is that a marriage can be voided on the grounds for “fraud” if one party has broken a promise, had an affair, misrepresented his/her financial or social status, or hid criminal records.

This is not true.  

Family Code Section 22110(d) defines fraud as “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 his or her spouse.”  Under this standard, California courts have found that misrepresentations about sterility or interest in having and bearing children are grounds for voiding a marriage based on fraud. However, having an affair or lying about your financial stability are not considered ‘fraud.’  
One of the most common uses of this code section is to annul or void marriages that are for immigration purposes only.

Should you get an annulment? If you are considering using this path to separate from your spouse, check with an attorney and look at your local rules because in most courts any allegation of grounds for voiding a marriage must be proven at an evidentiary hearing which may mean that both you and your spouse will have to appear in court.

Contact amanda@gordonfamilylaw.com for more information.