What is a nullity/annulment and how is it different than a divorce?

When the marriages of most couples become irretrievably broken, the most common way to end these marriages is to file for divorce. However, certain extenuating circumstances call for annulling the marriage rather than dissolving it.

There are two distinct categories of marriages in the context of nullities. There are marriages that are void and there are marriages that are voidable.

Unlike voidable marriages, the defect that makes the void marriage invalid cannot be waived by continuing the relationship. In other words, if a marriage is void, it can never be considered a valid marriage.

The two categories of void marriages are (1) incestuous marriages (Family Code section 2200) and (2) bigamous marriages (Family Code section 2201).

Family Code section 2210 deals with marriages that are voidable. This includes marriages where one of the parties is underage, where either party was of unsound mind, where consent to the marriage was obtained by fraud, where consent to the marriage was obtained by force, or where either party, at the time of marriage, could not and appears to never be able to consummate the marriage.

The difference between a judgment of nullity and a judgment of dissolution can be quite significant. In a marital dissolution, spouses are ordinarily entitled to a share in the community property. Additionally, in a dissolution, the lower earning spouse is usually entitled to receive spousal support and attorney fees.

If, however, a marriage is adjudged to be a nullity, there essentially is no legally recognizable marriage in the first place. Therefore, there can be no community property or spousal support. There is, however, an important and somewhat broad exception to this rule.

Under Family Codes sections 2251-2255, an innocent party can apply for “putative spouse” status if he or she has a good faith belief in the validity of the marriage. Under the recent California Supreme Court case, Ceja v. Rudolph & Sletten, it has been clarified that the innocent spouse must have a subjective good faith belief in the validity of the marriage in order to become a putative spouse.

Once declared a putative spouse, the Court must divide the quasi-marital property (what otherwise would have been community property) and it must award “spousal” support to the putative spouse in the same manner as if there was a valid marriage. The Court may also award attorney fees and costs in accordance with Family Code section 2030 et seq. as long as the party requesting fees is found to be innocent of fraud or wrongdoing in inducing or entering into the marriage, and free from knowledge of the then existence of any prior marriage.

An example may be helpful. Many times, a spouse will initiate divorce proceedings and, because of his or her unfamiliarity with the proper procedures, he or she will believe they have validly obtained a divorce when they have not. If this is the case and such a spouse subsequently “re-marries,” that bigamous marriage will be void and will be subject to a judgment of nullity. However, as long as either spouse in the subsequent marriage did not know that the first marriage was not properly dissolved, that spouse will held to be a putative spouse and will essentially be treated as if the marriage was valid.

If you believe that a marriage you entered into is subject to annulment, it is important that you understand your rights in this regard. The attorneys at Bickford Blado & Botros have successfully litigated annulments and understand these issues well. Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.


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