Cordell & Cordell Attorney, Ben Porter, recently penned an article on divorce and annulment which appeared in full on http://www.dadsdivorce.com/. This post highlights some of the point that Mr. Porter makes in addressing annulment specifically in Georgia where he practices, but also in general elsewhere.
In order to understand when an annulment is warranted, two points must be clarified. First, unlike a divorce, an annulment effectively deems the marriage invalid from its inception. As such, it is as if a marriage never occurred. Second, annulments are statutorily constructed and thus can only be analyzed through a state-specific lens.
Marriage is a civil contract between two individuals which the state has a vested interest in preserving. Thus, it is in many ways accurate when someone tells you that it is much easier to get married than it is to get divorced. As difficult as it is to get divorced, getting a marriage annulled is even more challenging. In Georgia, as in most other states, annulments are extremely rare and only granted in unusual circumstances. This is because an annulment is a legal decree or a judicial declaration which acknowledges that the marriage, which was sanctioned by the state, was a sham and is now deemed void.
To be validly married in the state of Georgia one must satisfy what each of what have been coined the “three C’s” including capacity, consanguinity, and consummation. The grounds for seeking an annulment in Georgia are limited to grounds which would deem the purported marriage void. One may be entitled to an annulment where one of the following requirements is satisfied: 1) You and your spouse are related beyond the limits of consanguinity including one the following: parent/(step)child, grandparent/grandchild, aunt/nephew, or uncle/niece; 2) You did not have the mental capacity to enter into a contract; 3) You were under the age of 16 when you entered into your marriage; 4) You were forced to enter into the marriage; 5) You were fraudulently induced to enter the marriage; or 6) Your spouse was married to another living spouse at the time you entered into the marriage.
Many persons reading the above list may feel convinced that they have been duped into entering a marriage. However, courts have been very hesitant in permitting a spouse from contending that their partner tricked them into marriage. Finding out that your partner is a “shopaholic”, “neatfreak”, “couch potato”, or even an alcoholic post-marriage does not justify an annulment. Courts have isolated annulment claims based on fraud to those regarding sexual relations and child rearing. For example, although incurable impotence is not alone a grounds for divorce in Georgia, an individual who knows she cannot bear children but assures her spouse that she can prior to the marriage may be a sufficient basis for such an allegation. Moreover, even where an individual has been fraudulently coerced into marriage, he cannot assert a claim for annulment where a child has been born to the relationship prior to or after the marriage (or has been therein conceived). This exception was reached in an effort to promote legitimacy of minor children when possible.
Others may attempt to argue that if they never engaged in sexual intercourse with their spouse, their marriage was never consummated and thus, should be subject to annulment. In Georgia, at least, this argument will be unsuccessful because “consummation” in this state is defined as the exchanging of vows or the marital ceremonial, rather than participation in sexual intercourse as is commonly misconstrued.
If the annulment is granted, the consequences are numerous. First, and most significantly, an annulment shall void the purported marriage and likewise reinstate the party’s to their pre-marital status as if no marriage ever occurred. Thus, a party may marry another individual immediately after the court issued a final order granting the annulment. Second, and consequentially, property owned by the parties will be awarded to the original owner and not subject to equitable division. There is authority, however, which permits the party who entered into the purported marriage unknowingly to receive a distribution of the property and other similar equitable relief from the party who knew of the incapacity or other impediment to marriage.
In order to understand when an annulment is warranted, two points must be clarified. First, unlike a divorce, an annulment effectively deems the marriage invalid from its inception. As such, it is as if a marriage never occurred. Second, annulments are statutorily constructed and thus can only be analyzed through a state-specific lens.
Marriage is a civil contract between two individuals which the state has a vested interest in preserving. Thus, it is in many ways accurate when someone tells you that it is much easier to get married than it is to get divorced. As difficult as it is to get divorced, getting a marriage annulled is even more challenging. In Georgia, as in most other states, annulments are extremely rare and only granted in unusual circumstances. This is because an annulment is a legal decree or a judicial declaration which acknowledges that the marriage, which was sanctioned by the state, was a sham and is now deemed void.
To be validly married in the state of Georgia one must satisfy what each of what have been coined the “three C’s” including capacity, consanguinity, and consummation. The grounds for seeking an annulment in Georgia are limited to grounds which would deem the purported marriage void. One may be entitled to an annulment where one of the following requirements is satisfied: 1) You and your spouse are related beyond the limits of consanguinity including one the following: parent/(step)child, grandparent/grandchild, aunt/nephew, or uncle/niece; 2) You did not have the mental capacity to enter into a contract; 3) You were under the age of 16 when you entered into your marriage; 4) You were forced to enter into the marriage; 5) You were fraudulently induced to enter the marriage; or 6) Your spouse was married to another living spouse at the time you entered into the marriage.
Many persons reading the above list may feel convinced that they have been duped into entering a marriage. However, courts have been very hesitant in permitting a spouse from contending that their partner tricked them into marriage. Finding out that your partner is a “shopaholic”, “neatfreak”, “couch potato”, or even an alcoholic post-marriage does not justify an annulment. Courts have isolated annulment claims based on fraud to those regarding sexual relations and child rearing. For example, although incurable impotence is not alone a grounds for divorce in Georgia, an individual who knows she cannot bear children but assures her spouse that she can prior to the marriage may be a sufficient basis for such an allegation. Moreover, even where an individual has been fraudulently coerced into marriage, he cannot assert a claim for annulment where a child has been born to the relationship prior to or after the marriage (or has been therein conceived). This exception was reached in an effort to promote legitimacy of minor children when possible.
Others may attempt to argue that if they never engaged in sexual intercourse with their spouse, their marriage was never consummated and thus, should be subject to annulment. In Georgia, at least, this argument will be unsuccessful because “consummation” in this state is defined as the exchanging of vows or the marital ceremonial, rather than participation in sexual intercourse as is commonly misconstrued.
If the annulment is granted, the consequences are numerous. First, and most significantly, an annulment shall void the purported marriage and likewise reinstate the party’s to their pre-marital status as if no marriage ever occurred. Thus, a party may marry another individual immediately after the court issued a final order granting the annulment. Second, and consequentially, property owned by the parties will be awarded to the original owner and not subject to equitable division. There is authority, however, which permits the party who entered into the purported marriage unknowingly to receive a distribution of the property and other similar equitable relief from the party who knew of the incapacity or other impediment to marriage.
For example, a married man who attempts to wed another woman without first having his first marriage dissolved may be forced to suffer the consequences of property distribution as if he did enter a valid marriage. Thus, although the typical divorce statutes regarding property distribution may not apply, parties to an annulment may also have property disputes resolved. Third, an annulment does not relieve one of criminal sanctions for bigamous or incestual behavior which yielded the annulment nor does it provide shield against common law tort action for fraud. Fourth, just as in a divorce case, an individual who successfully annulled a marriage may have their former name restored among other things.
For more information on issues of divorce, alimony, child custody and support and other issues important to men and fathers, go to http://www.dadsdivorce.com/.
Rick Ortiz is editor of http://www.dadsdivorce.com/, a free resource for men and fathers featuring legal articles penned by the attorneys of the world's largest family law firm focusing on men, Cordell & Cordell, PC.
For more information on issues of divorce, alimony, child custody and support and other issues important to men and fathers, go to http://www.dadsdivorce.com/.
Rick Ortiz is editor of http://www.dadsdivorce.com/, a free resource for men and fathers featuring legal articles penned by the attorneys of the world's largest family law firm focusing on men, Cordell & Cordell, PC.
