There are seven grounds on which a marriage may be annulled (meaning: 1) void, i.e., an invalid marriage can never have existed upon a judgment of nullity in the case of incest and bigamy; or 2) voidable, i.e., a valid marriage may be determined never to have existed as of the date of judgment of nullity in the case of an under-age spouse, unsound mind, fraud, duress, and physical incapacity) under Family Code sections 2200 – 2210:
- Incest – marriage between a parent and child, between ancestors and descendants of every degree, between siblings, between half-siblings, between uncles and nieces, and between aunts and nephews.
- Bigamy – one of the parties is already married and has not obtained a legal divorce, unless the husband or wife of either party is living but was absent and unknown for a period of five successive years immediately preceding the subsequent marriage, or the husband or wife was generally thought to be dead.
- Under Age – one of the parties is under 18 unless a court grants permission to marry or unless after attaining the age of 18, the parties cohabit as husband and wife.
- Unsound Mind – one of the parties is of unsound mind except where, after coming to reason, the parties cohabit as husband and wife.
- Fraud – consent of either party was obtained by fraud unless the defrauded party, after having obtained full knowledge of the fraud, freely cohabits with the other as husband or wife. The fraud must go to the “very essence of the marriage relationship,” examples of which are seen in Marriage of Ramirez and Llamas (2008) and Marriage of Meagher and Maleki (2005).
- Duress – consent of either party was obtained by force, unless the party whose consent was obtained by force afterward freely cohabits with the other as husband or wife. And,
- Physical Incapacity – at the time of marriage, a party is physically incapable of entering into the marriage state, and that incapacity continues and appears to be incurable.
An annulment is retroactive in effect. A judgment (decree) “of nullity results in a determination that no legal contract of marriage ever came into being . . . Hence, the marital status never legally existed between the parties and the decree relates back to the date of the purported marriage and erases all of the consequences of any mistaken reliance on there being such a relationship.” (Marriage of Goldberg(1994) 22 Cal.App.4th 265, 271.)
Enoch Arden Statute
In the case of bigamy and polygamous marriages, the subsequent marriage is normally void and relates back to the date of the subsequent marriage to erase it. There is an exception to relation back, however. Its name is derived from the poem Enoch Arden (1864) by Alfred, Lord Tennyson, about a sailor of the same name who goes to sea and is shipwrecked, only to return 10 years later to find that his wife had remarried thinking him dead. Under such circumstances, the spouse who remarries should not be blamed for doing so, and the law provides a remedy if at least one of two requirements is satisfied: The subsequent marriage is valid (i.e., until an annulment is sought and is determined), if the former spouse was: 1) absent and not known by his or her spouse to have been living for a period of five years immediately proceeding the subsequent marriage; or, 2) generally reputed or believed by his or her spouse to be dead at the time the subsequent marriage was contracted. (Family Code sections 2201(a)(2), 2201(b), and 2210(b).)
If the trial court finds that the marriage is void or voidable and that either party or both parties believed in good faith the marriage was valid, then the court must: i) declare that party to be a “putative spouse” (a fictitious designation for the purpose of property division and support); and, ii) divide any property that would have been divided as community property were the parties obtaining a legal separation or dissolution of their marriage. (Marriage of Tejada (November 25, 2009).) When the trial court declares a party to be a putative spouse, all property which must be divided is designated quasi-marital property.
Payment of Support to a Putative Spouse
The trial court may order that support be paid to a party if it finds him or her to be a putative spouse. (Family Code sec. 2254.)