Creation, Nullity, and Annulment Flashcards
Are Blood Tests required for marriage license in NY?
No
Marriage License Requirements
obtained by a town or city clerk [NY Dom Rel Law 14] and
delivered to officiant
within 60 days
but before the ceremony is performed.
Failure will not invalidate marriage but
person subject to criminal penalties for marrying without a license.
Age Limitations In NY
- 18+: Must show proof of age
- 16 and 18: Consent of parent or guardian
- Under 16: Court approval
- Under 14: Prohibited
Limitation on Solemnizing marriage after obtaining license
not within 24 hours of obtaining a license
except in case of imminent death.
Who may solemnize a ceremonial marriage
An Authorized party: Clergyman or minister Leader of a chapter of the Ethical Cultural Society Mayor Magistrate County Clerk City Clerk Judge or justice [NY Dom Rel Law S 11]
Contractual Marriage Requirements
(1) signed by parties and at least 2 witnesses in NY State;
(2) state of residence of parties and witnesses with date and place of marriage;
(3) acknowledged before NY Judge
witnessed in manner required for acknowledgement of a conveyance of real estate to be recorded [NY Dom Rel Law 11]
(4) NY Recognizes contractual marriage when statutory requirements are satisfied [NYDRL 11(4)]
Common Law Marriage Defined - Three C’s
couple live together
as married couple
prescribed statutory period
without legal formality marriage.
Requires 3 C’s - Consent, Cohabitation, Community reputation
Common Law Marriage in NY
invalid if contracted in NY.
recognized if validly contracted under the laws of another state.
Burden of Proof and Standard of Proof for Common Law Marriage
BoP on person asserting existence of CL marriage.
Clear and Convincing evidence required
NonMarital Express Contracts between Cohabiting Individuals
NY will recognize contracts to support each other or share property provided there is consideration OTHER than the furnishing of sexual services.
Implied contracts between cohabiting parties will not be enforced because of the high risk of fraud [Morone v Morone]
4 Impediments to a valid marriage
- Age
- Mental or Physical Incapacity
- Consanguinity
- Bigamy
A marriage is void ab initio (from the beginning) under what circumstances. (2)
- incestuous relationship - parent-child; brother or half brother-sister; uncle-niece
- Bigamous
No judicial order is needed when a marriage is void.
Parties may abandon the marriage.
May seek a declaration of nullity on either of the above grounds.
Grounds for a Petition for Annulment seeking a judicial determination that a voidable marriage is void. (5)
Age Mental Incapacity or Illness Physical Incapacity Consent by force, duress, threat of bodily harm and injury to property Fraud
Voidable Marriage on the basis of Mental Incapacity
relative with interest can bring action if party is incapable of consenting to marriage for lack of understanding.
can maintain action if party regains mental soundness
BUT not if he continues to co-habitate
Limitation on Consent By force ground for Annullment
parties cohabited before commencing the action
consent by force is not be available as a ground for annulment.
Fraud as grounds for an annulment of a marriage
action within a reasonable time after marriage if
failure to disclose or misrepresentation
GOES TO THE ESSENCE OF THE MARRIAGE
Examples of Fraud that are grounds for annulment
Addiction drugs health or physical condition mental Condition concealed pregnancy A prior marital status Intent not to have children
Right to Jury Trial In Annulment Action
There is a right to a jury trial on all issues of fact EXCEPT when the action is grounded on physical incapacity
Physical Incapacity as grounds for annulment of a marriage
W/I 5 years of commencement
party is CONTINUOUSLY and INCURABLY physically incapacitated
includes impotence, VD, emotional disturbance etc.
absolute right to have marriage annulled a party is incurably mentally ill for period of five years
illness commenced after marriage performed [NYDRL 140(f)]
Legal Consequences of Annulment
Void from time nullity is declared by court of competent jurisdiction.
Children born while parents are married are legitimate
even if marriage is later declared void.
TiE are converted to TiC’s
Any disposition or appointment of property made by will is revoked and passes as if the former spouse predeceased the testator
Exception to the time restriction for obtaining a license and solemnizing the ceremony.
Except in the case of imminent death or irreparable harm, marriages may not be solemnized within 24 hours of obtaining a license.
Validity of Foreign Marriages
Marriage that is valid according to the laws of the state in which it is contracted will be recognized in every other jurisdiction unless the marriage is deemed to violate the public policy of the forum state [Fernandez v Fernandez]
Even in states that do not recognize common law marriage will recognize the common law marriage if the parties satisfied the common law marriage requirements of another state
When a marriage validly celebrated elsewhere will not be recognized in NY State
- The marriage violates a prohibitory rule of NY as the domicile of one of the parties, it will be held void if the parties immediately return to and become domiciled in NY. (Ie., nonage, bigamy, incest).
- A polygamous or incestuous marriage, even if valid in a country or jurisdiction where the marriage was contracted, will generally be deemed invalid as against public policy.
Difference between Void Marriages and Voidable Marriages
No judicial order is needed when a marriage is void.
When a marriage is only voidable, a petition for annulment must be brought seeking a judicial determination that the marriage be declared void. Such grounds include Age, Physical incapacity, Mental Incapacity, Consent by force or duress, Fraud
Plaintiffs burden in Annulment action
P has the burden of proving there has been no cohabitation between the parties such as would bar a judgement
EXCEPT
where mental retardation, illness, or physical incapacity has been alleged. Here P must only prove the incapacity continues.
SoL for Annulment
Except for Fraud (3 year limit) and Physical Incapacity (5 year) no other SoL has been established for any ground.
By default the remainder is 6 years.
Legal Consequences of Annulment
Annulled marriages are void from the time their nullity is declared by a court of competent jurisdiction
EXCEPT
Bigamous and incestuous marriages are void ab initio.
[NYDRL 7]
Situations where courts will be especially vigilant in finding common law marriage
party claims cl marriage to share in estate of deceased
cohabitation in non marital relationship prior to alleged common law marriage, burden will be especially heavy one
A marriage voidable for age will not be annulled if
petitioner was of age to consent when married
party cohabitates as married couple after reaching age of majority
Examples of force or duress sufficient to gain annulment
threat of prosecution
bodily harm
injury to property
Burden of proof for seeking an annulment
age, duress, fraud - petitioner has burden to prove no cohabitation
Mental or physical incapacity or illness - must prove incapacity continues
