Choosing to terminate a marriage through an annulment, (called a nullity proceeding in legal terminology), or through divorce (more formally, a dissolution proceeding), depends on an array of factors that must be carefully weighed and considered by either party seeking the marriage termination.
Many people believe that an annulment is a fast-track method to end a marriage, especially when the marriage is short-term, there are little or no assets or debts to be divided, and there are no minor children of the marriage. However, the reason for the annulment is extremely important for determining whether an annulment is the better choice over divorce.
A nullity proceeding rests on the theory that no valid marriage ever occurred because of factors existing at the time of the marriage. In other words, divorce seeks to terminate a valid marriage on grounds arising after the marriage took place; a nullity action asserts that no marital status ever truly existed.
Some of factual grounds for an annulment can be easily proven. Marriages that involve incest or bigamy are void from the start because they are against the law, and thus may be annulled. A marriage that wasn’t lawfully contracted, or properly solemnized, may be annulled. The most difficult way to annul a marriage, however, is to claim that the marriage was based on fraud.
California law has long granted annulment of marriage on the basis of fraud where the fraud involves misrepresentation or concealment that goes to the very essence of the marriage. This alleged misrepresentation or concealment must be vital to the marital relationship and directly affect the why the deceived party consented to the marriage or the domestic partnership.
Case law regarding annulment based on fraud is mainly tied to the sexual, or procreative, elements of a marriage. Examples include the secret intention not to have sexual relations with one’s spouse, or not to actually reside in the same household as one’s spouse; a wife’s concealment of a pregnancy by a man other than her husband; or the clandestine intention of seeking to enter a marriage solely to obtain a green card.
On the other hand, courts have held that the following situations do NOT show a level of fraud sufficient to warrant an annulment of the marriage:
- Concealing temper, idleness or extravagance;
- Purporting to own a particular business or have a certain level of financial means;
- Lying about chastity or moral character;
- Concealing a severe drinking problem;
- Refusing to seek employment; and
- Turning out to be a disappointing sexual partner.
Going to court to secure a finding of fraud to annul a marriage can be a costly and invasive process. If you believe you have been indeed defrauded into entering the marriage, it may be easier, and less costly, to seek a divorce.
The disadvantages of a nullity proceeding are not encountered in dissolution proceeding. Most notably, the grounds for dissolution are relatively simple to establish. They usually are based upon irreconcilable differences, a somewhat vague term that does not require the collection of evidence for admission in court.
Thus, before you decide to seek either a divorce, or an annulment, it is important to speak with an experienced family law attorney to determine which choice is better. That involves your personal decision about the emotional price and financial cost to you for getting out of the marriage.