Declaration of Nullity & Annulment Flashcards
When is a marriage void?
- void ab initio - from the beginning
- WEHN:
- it is incestuous
- bigamist
- no judicial order needed, pty go their separate ways
When is a marriage voidable?
- a petition for annulment must be brought to have the marriage declared void
- GROUNDS:
- Age
- Mental incapacity or mental illness
- Physical Incapacity
- Consent obtained by force or duress
- Fraud
When is a marraige voidable due to age?
- either pty under the age of leagl consent, annualment granted @ discretion of the ct
- ct will take into consideration all the facts & circumstances surrounding the marriage
- WILL NOT BE ANNUALED IF:
- petition brought by the one who was of the age to legally consent
- petition brought by the person not of the age, they subsequently & freely cohabitated as a married couple after reaching the age of majority
When is a marraige voidable due to mental incapacity or mental illness?
- It will be VOIDABLE
- a pty incapable of consent to a marriage for lack of understanding
- the action may be maintained by a relative that has an interest in having the marriage annualed
- action may be maintained if the pty regains mental soundness BUT NOT if after regaining maental soundness continues to cohabitate
- ABSOLUTE Right to have it annualed if the pty has been mentally incapacity for 5+ years & this occurred after the marriage
- ct may order for maintence, support of that spouse
When is a marraige voidable due to physical incapacity?
- Annualled that one pf the ptys was physically incapable of entering the marriage
- EXAMPLES
- venerial disease
- impetency
- emotional disturbence
- Actio Must be w/in 5 years of marriage
- Physical incapacity must be continuing & incurrable
When is a marraige voidable due to consent by force or duress>
- EXAMPLES
- threaten prosecution
- threats of bodily harm
- injury to property
- NOT ANNUALED if
- it appears the ptys before commencement of action, voluntarily cohabitated as a married couple
When is a marraige voidable due to fraud?
- CONSIST of
- a failure to disclose or
- misrepresentation that goes to the essence of the marriage
- Essence = sexual intercourse; reproduction
- Spouse claiming fraud held to a duty to discover the fraud w/in a reasonable time after the marriage
- EXAMPLES of fraud:
- concealment/misrep of addiction to narcotics/intoxicants
- health or physical condition
- mental condition
- concealed pregnancy
- prior marital status
- intent not to have children
What is the burden of proof for a void or voidable marriage?
- If on grounds of age, duress or fraud:
- pty seeking annulment has to provethat there has been no cohabitation that would bar judgment
- If on grounds of mental incapacity or millness or physical incapacity
- P must prove that the incapacity continues
What are the legal consequences of annulment?
- Annualed from thepoint that a court of competent jurisdiction declares their nullity
- CHILDREN
- declared marital children even if annulment or marriage void
- PROPERTY
- tenancy by the entirity are converted to Tin C
- WILLS
- any disposition or appointment made to a former spouse dissolves & passes as if the former spouse predeceased tesator
- disqualifies the former spouse from taking an elective share or participating in distribution
- any disposition or appointment made to a former spouse dissolves & passes as if the former spouse predeceased tesator
- SOL = 6 years
HYPO
Fred and Ethel have been married ten years. When they were married, Ethel was 15 years old. However, at that time, Fred thought Ethel was 18 years old. Ethel did not get parental consent for the marriage. Fred discovers Ethel’s actual age when Ethel turned 21 years old. Is their marriage void because of age? Is it voidable because of age by either Fred or Ethel?
- No b/c on the grounds of age, you can only be voidable not void
- Fred can’t seek to have it voidable b/c he was of legal age to consent
- Ethel, can’t do it b/c she freely lived with Fared as a married couple after the age of majority
