What is the Difference Between a Divorce and an Annulment?
An annulment of marriage is a legal decree that a marriage is void. Unlike a Judgment of Divorce, which recognizes the existence of a marriage and dissolves it, an annulment treats the marriage as if it had never existed. Some spouses prefer an annulment because they believe a divorce carries a stigma. When a spouse wishes to obtain an annulment, the spouse must demonstrate one of the five following causes of action:
- Party was a minor when married: A marriage of any person under the age of 18 needs the written consent of both parents. If this requirement is not abided by, the spouses or the spouses’ parents can seek an annulment.
- Consent for the marriage is obtained by force, duress or fraud: If a person enters into a marriage due to the force or pressure of another individual, the person forced into the marriage could seek an annulment. Common examples of fraudulent marriages are: marrying for the purpose of obtaining immigration status; claiming to be pregnant to entice someone to marry; and claiming you want to have children when you will not.
- Lack of mental capacity to give consent to get married: If an individual or a spouse was mentally ill or incapacitated at the time of the marriage, the marriage may be annulled.
- Lack of physical capacity to consummate the marriage: If you or your spouse is physically unable to engage in sexual intercourse, and you did not know of the incapacity at the time of your marriage, the marriage may be annulled as long as you ask for the annulment within the first five years of marriage.
- Incurable mental illness for a period of five years or more: If your spouse is mentally ill for more than five years and cannot be cured, you may be able to obtain an annulment.
Prior to the enactment of DRL §170(7), a spouse needed to prove one of the following causes of action to obtain a divorce: cruel and inhuman treatment, abandonment, confinement of Defendant in prison for a period of three or more consecutive years after marriage, adultery, or that the spouses have lived apart pursuant to an agreement. See DRL §170. On August 15, 2010, then-Governor David Patterson signed the no-fault divorce bill which affects all divorces commenced on or after October 12, 2010. This provision referred to as the “no-fault divorce” cause of action only requires a spouse to demonstrate that “the relationship between husband and wife has broken down irretrievably for a period of at least six months” to constitute a cause of action for divorce. Since then, a divorce is significantly easier to obtain than an annulment in the State of New York.
Nevertheless, a spouse may still wish to pursue a religious annulment if they want to remarry in a church. For example, in the Catholic faith, a spouse cannot remarry in a church until the marriage is thoroughly examined by the local diocesan tribunal and an annulment is rendered. An annulment is granted if the church finds that the marriage actually fell short of at least one of the essential elements required for a binding union. On the other hand, in the Jewish faith, an annulment is not required for remarriage. A husband must obtain a religious divorce, commonly referred to as a Get. Without a Get, the husband and wife even if divorced civilly, are still considered married in the Jewish faith.
Effects of an Annulment on Children
If a couple’s marriage results in an annulment, there is no affect on the legitimacy of the children born during the marriage. Both spouses remain responsible for any minor children. A court deciding an annulment, similar to a court in a no-fault divorce, will render orders for custody, visitation and child support.