Undoing Marriage

Question 1

What grounds make a marriage void?

Answer 1

Incest and bigamy. Parties may walk away from void marriages without court order.

Question 2

What grounds make a marriage voidable (annulment)?

Answer 2

Grounds are waivable, meaning that continued to cohabitate after the barriers or ground has been removed.

1. Nonage
2. Mental defects
3. Physical incapacity
4. Wrongfully obtained consent
   a. Force or duress
   b. Fraud: failure to disclose or misrepresent something that is material/vital to the marital relation (e.g. religion, procreation and sex). Money or social status is not grounds for anullment.
5. Five Years’ Incurable Mental Illness - need 3 court appointed physicians to testify to that.

Question 3

What does a separation do to the marriage?

Answer 3

It does not end the marriage - it allows a couple to live separately and helps deal with children.

Question 4

What are the grounds for separation?

Answer 4

1. Cruel and inhuman treatment
2. Abandonment
3. Three Consecutive Years’ Imprisonment During Marriage
4. Adultery
5. Failure to support spouse

Question 5

What are the defenses against adultery?

Answer 5

1. Recrimination - unclean hands
2. Condonation - waiver/forgiveness
3. Connivance - entrapment
4. SOL - 5 years from date of discovery.

Question 6

What are the grounds for no-fault divorce?

Answer 6

The grounds are the “irretrievable breakdown of marriage.”

Question 7

What are the grounds for a fault-based divorce?

Answer 7

1. Adultery
2. Cruel and inhuman treatment
3. Abandonment for one year or more
4. Three consecutive years’ imprisonment

Question 8

What are the grounds for a conversion divorce? What are the defenses?

Answer 8

Spouses have lived apart (i) for at least one year following the granting of a separation decree, OR (ii) pursuant to a written, filed and properly executed separation agreement.

Divorce will not be granted if: (i) a material provision of the agreement was breached; OR (ii) the agreement was void because of fraud, duress, or incapacity.

Question 9

What are the grounds for dissolving a marriage?

Answer 9

This is called a special procedure to dissolve marriage on ground of absence. The petitioner needs to state that:

1. the spouse has been absent for five successive years;
2. the spouse is believed to be dead; and
3. a diligent search has revealed no evidence that the spouse is alive.

Question 10

How is property distributed in a divorce?

Answer 10

Under the principal of equitable distribution - there are two steps:

1. Categorize:
   a. Separate property: property acquired before marriage, property acquired by inheritance or gift from a non-spouse, compensation for personal injuries, property acquired in exchange for or by increase in value of separate property, and property described as separate by written agreement of the parties. Separate property remains as such.
   b. Marital property: this is all property acquired by either spouse during the marriage (unless contrary to any agreement of the parties). This will include any degrees acquired during marriage.
2. Distribute: the court will consider all circumstances of the case, including financial circumstances of each spouse, duration of the marriage, age and health of the parties, maintenance awards, contribution to acquisition of marital property, tax consequences to the parties, loss of health insurance, and economic fault of the parties.

Marital fault is not a factor in distribution of property.

Question 11

How are maintenance awards determined?

Answer 11

Temporary Maintenance: awarded to provide for a spouse during the pendency of an action. It is income based - where you take the percentage of the income.

Post-Divorce Maintenance: based on equitable factors - like parties’ income, length of marriage, capacities for self-support and present and future earning capacities, custody of children, parties’ ages and health, and the equitable distribution of mairtal property. Marital fault is also not considered in this.