A California annulment, also known as a judgment of nullity, is found when a marriage is either void or voidable. You either never were in a valid marriage or your marriage can be invalid based on information newly discovered. A California annulment may be granted only when a marriage is adjudged void or voidable under conditions provided by statute. See Family Code §§2200–2201 (void marriages) and Family Code §2210 (voidable marriages). When you get an annulment, you are not getting a divorce.
In brief, a marriage is void in cases of incest and bigamy, and is voidable in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity. A California annulment may not be granted on any other ground. See Price v Price (1938) 24 CA2d 462, 466. Further, the statutory grounds must have existed at the time of the marriage. See Family Code §§2200–2201, 2210; McDonald v McDonald (1936) 6 C2d 457, 460.
California Annulment for a Void Marriage
A void marriage is void from the beginning. See Family Code §§2200 (incestuous marriages), Family Code §§2201 (bigamous marriages). Technically, no marriage has occurred, regardless of whether a judgment of nullity is obtained. See Marriage of Seaton (2011) 200 CA4th 800, 808 (although no judgment had been entered establishing void bigamous marriage of wife to prior husband, court erred in finding that marriage to subsequent husband was void). Nevertheless, it is sound practice to obtain a judgment of nullity in a void marriage because it provides a judicial determination, as a matter of public record, that eliminates any doubt about the parties’ marital status. Also, depending on the circumstances, a party to a void marriage may be entitled to assert property and support rights as though the marriage had been valid. Finally, when the parties have children, issues of custody, visitation, and child support can be addressed in a nullity action.
California Annulment for a Voidable Marriage
A voidable marriage, on the other hand, is valid unless and until it is judicially declared a nullity. See McDonald v McDonald (1936) 6 C2d 457, 461. The failure to record a certificate of registration of a marriage does not invalidate an otherwise valid marriage. See Marriage of Cantarella (2011) 191 CA4th 916, 925.
Effect of Judgment on Parties’ Marital Status
A California annulment restores the parties to the status of unmarried persons. See Family Code §2212(a). Technically, this is true only of voidable marriages, because parties to void marriages were never validly married. Unlike a dissolution judgment (divorce), which may specify a future date on which the marital status ends (see Family Code §2340), a judgment of nullity always results in the parties being free to remarry immediately. Whereas a dissolution judgment merely dissolves the existing marriage, and leaves intact the marriage relationship between the date of marriage and the date of termination of the marital status, a judgment of nullity is said to “relate back” and erase the marriage and all its implications from the outset. See Sefton v Sefton (1955) 45 C2d 872, 874. Legally, it is as though the parties had never married. It should be noted, however, that a party to a nullity action who qualifies as a “putative spouse” may be treated much as a true spouse would be treated for purposes of property division, support, and attorney fees and costs. Also, the doctrine of “relation back” has been deemed not to apply when its application would unjustly affect the rights of an innocent third party. In Sefton v Sefton, supra, for example, the court held that the granting of an annulment of a voidable marriage on the grounds of fraud did not entitle a party to revive an alimony obligation that had terminated on her remarriage. Later courts extended Sefton to apply when the annulment was of a void marriage on the grounds of bigamy. See Fry v Fry (1970) 5 CA3d 169; Berkely v Berkely (1969) 269 CA2d 872. One court has held, however, that if a party who obtained an annulment on the grounds of force could establish that the remarriage was not due to any voluntary act on her part, the trial court would have the authority to reinstate spousal support based on equity. See Marriage of Weintraub (1985) 167 CA3d 420, 426.
A marriage entered into while either party is married to another person is usually bigamous and void from the beginning. See Family Code §2201. In Marriage of Campbell (2006) 136 CA4th 502, 509, purported remarriage by person involved in dissolution litigation who lacks judgment dissolving current marriage is void. There are, however, two specified exceptions under which such a marriage is merely voidable. See Family Code §2201. A marriage is voidable if, at the time of the marriage, either party was married to another person and:
- For 5 successive years immediately preceding the marriage, the party’s spouse had been absent and not known to the party to be living; or,
- At the time the marriage was entered into, the party’s spouse was generally reputed or believed by the party to be dead. See Family Code §2210(b).
An action to obtain a judgment of nullity of a voidable bigamous marriage may be filed by either party during the life of the other, or by the party’s prior spouse at any time. See Family Code §2211(b).
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