Annulment FAQ’s

Posted on Thursday, January 29th, 2009
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1. I have been married for one year at the end of this month and it seems that the marriage is mutually over. We have no joint assets and no children. What is the difference between an annulment and a divorce? Is there an advantage to one over the other?

Most likely you want to get a divorce, and because you’ve been married such a short time and don’t have assets or children, you probably qualify for an uncontested divorce. An uncontested divorce is much simpler than an annulment. An annulment is an old-‘fashioned concept that was adopted by the New Jersey  legislature many years ago as a result of  lobbying by certain religious groups that publicly opposed divorce, but privately  recognized that certain marriages were simply not meant to be.

To get a civil annulment (as opposed to a church annulment, for which you must consult  your religious adviser), you must usually meet the specific requirements New Jersey’s annulment statute which is N.J.S.A. 2A:34-1. Some typical grounds for an annulment are when one spouse alleges that the marriage was based on one spouse’s fraudulent premarital statement. When it comes to dividing property, determining custody or child support, or other practical matters, there is little real difference between an annulment and a divorce. Unless one of you has an extremely strong religious objection to divorce, that is the best route to take. You don’t need to prove fraud or anything else because New Jersey allows no‑fault divorce, you only need to say that you don’t get along.

2. What are the jurisdiction and residency requirements to file for an annulment?

The New Jersey Family Court has jurisdiction over any annulment case. However, unlike in divorce cases, there is no residency requirement in order to file an annulment case, so long as either party is a bona fide resident of New Jersey at the time the action commenced.

3. What are the grounds for an annulment?

Annulment is a way of terminating a marriage that is different from a divorce and separation. Annulment is the process of nullifying of a marriage where the court declares that the marriage never took place. In order to annul a marriage, the person seeking the legal action must have sufficient grounds for annulment. What follows is a list of requirements or grounds for annulment which must be presented to the courts to terminate a marriage in this way.

The grounds for an annulment typically involve one party’s lack of capacity for marriage or some type of fraud. One ground for annulment is if one party had another living husband or wife at the time of marriage. This is valid even if the spouse knew about the other spouse prior to marriage. In some cases a person may have been legally denied the right to remarry, in which case this is sufficient grounds for annulment.

The grounds for annulment may involve one party being under the age of consent at the time of marriage. Generally speaking, if the court determines that the party was too young to get married and if no parental consent was given, then the court may find this to be adequate grounds for annulment. In some cases, these statutes may even be applicable if the couple went to a different state to get married and returned to their state of residence where their marriage is deemed unlawful.

The grounds for annulment may also include being forced or threatened into marriage, mental incapacitation at the time of marriage, temporary or permanent insanity, intoxication (drugs or alcohol) at the time of the marriage, or marrying based on fraudulent statements or actions by the other party. A fraudulent marriage can be if one of the parties never intended to be married, the marriage was sought to deceive the other party, the marriage was for the purpose of gaining citizenship rights, and the like.

The grounds for annulment can also include impotency and incest. A person whose spouse is physically and incurably impotent during marriage has grounds for annulment, so long as they were not aware of the impotency prior to the marriage. If a marriage was never consummated, this constitutes viable grounds for annulment. The grounds for annulment also include unions between two people who are too close in relation such as: whole or half siblings, first cousins, parents, grandchildren, uncles, aunts, and the like.

The grounds for annulment must be presented to the court on behalf of the innocent party. In order to be considered, the grounds for annulment must be presented to the courts within a reasonable period of time.

Annulments are rare in New Jersey. One reason is that the legal grounds to obtain an annulment are very narrow. Another reason why annulments are rare is because the social stigma of divorce has significantly lessened in recent years.

Despite the rarity of annulment, the procedure is still an available option if there are sufficient legal grounds present. The legal theory underlying annulment is that the marriage was never valid to begin with. Therefore, the court will declare an annulment upon being presented with proof of the invalidity of the marriage.

4. What are the grounds for annulment recognized by New Jersey law?

A. Bigamy. A person who marries while still being married to one or more other spouses commits the criminal offense of bigamy. Bigamous marriages are void in New Jersey; thus, they are subject to annulment.

Bigamy occurs where either of the parties has another spouse living at the time of the second marriage. The ignorance of a prior undissolved marriage at the time of the entry into the marriage sought to be dissolved is necessary to prevail on an action for annulment. See, N.J.S.A. 2A:34-8. The party seeking an annulment must prove the existence of the former marriage at the time of the celebration of the marriage sought to be avoided.

The doctrine of unclean hands often is applied to annulment cases based on the ground of bigamy. Where the plaintiff seeks to avoid a marriage based on his or her prior marriage with another, quite often the courts will deny this application based on the doctrine of unclean hands. Rooney v. Rooney, 54 N.J. Eq. 231 (Ch. 1896); (Here the petitioner concealed from his wife the fact that he was already married, and the court denied annulment relief).

An annulment based on bigamy is not as rare as some people might think. New Jersey is becoming more multi-cultural each and every year. Many immigrants who come to live in New Jersey neglect to finish their divorces in their home country. I have heard many stories wherein an immigrant comes to live in New Jersey, and gets remarried even though he never divorced his wife in his home country. This type of factual scenario is quite prevalent.

B. Duress. If a person is compelled to marry another under the threat of violence sufficient to overcome the mind and will of a person of ordinary firmness, then the marriage may be annulled on the theory that the marriage is a consensual relationship and that the compulsion is inconsistent with consent. Actual threats of serious violence are required, and the mere threat of prosecution or feelings of moral responsibility have been found insufficient duress to annul a marriage.

C. Mental illness, insanity and retardation. If a person is married while mentally ill, insane or so retarded that the person could not knowingly and understandingly consent to the marriage, the marriage can be annulled, again on the theory that marriage is a consensual relationship and that such a person is legally incapable of consent.

D. Lack of physical assent to the marriage. Perhaps the best way to explain this ground for annulment is to give an example. A valid marriage requires that both parties be able to manifest physical assent to the marriage.

E. Impotency. To obtain an annulment on the ground of impotency, the moving party must prove that the other spouse was permanently and incurably impotent when the marriage was entered into and that the moving party did not discover the fact until after the marriage.

In most New Jersey cases, a complaint for an annulment based on impotency will only be granted if one of the parties concealed his or her inability to produce children. It is important to emphasize that any impotence that originates after the marriage is not within the annulment statute.

F. Age. Under New Jersey law no one under the age of 18 may marry without court approval, and persons under the age of 18 but older than 18 cannot marry without the consent of their custodial parents or legal guardians. If an underage person managed to obtain a marriage license without court or parental approval, the marriage would be subject to annulment.

G. Incestuous marriage. New Jersey law prohibits all marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, aunts and nephews, and first cousins. Any incestuous marriage would be subject to annulment.

H. Fraud. A fraudulent misrepresentation(s) made by one spouse to another before a marriage can provide grounds for annulment on the theory that the fraud affects the validity of consent to the marriage. New Jersey cases require that the premarital fraudulent misrepresentation relate to a vital or essential part of the marital relationship and that the spouse seeking annulment have relied on the misrepresentation.

I. Lack of Capacity.

A marriage can be annulment and is void where either or both parties lacked the capacity to marry due to any of the following circumstances:

i. The spouse did not understand that he or she was getting married because of a mental condition or because he was under the influence of drugs or alcohol;

ii. There was not a mutual asset to the marriage;

iii. Duress;

iv. Fraud as to the essentials of the marriage;

5. What is the standard of law that a court uses to determine if a marriage can be annulled based on fraud?

An annulment cased based on fraud must be determined on a case by case basis. See, V.J.S. v. M.J.B., 249 N.J. Super. 318 (Ch. Div. 1991). The court must analyze if the alleged fraud or the misrepresentations materially affected the essentials of the marriage.

6. What are the conceptional differences between an annulment and a divorce?

Annulments differ conceptually from divorces in that they establish that the marital status never legally existed while divorces terminate marital status. Historically, the law does not favor annulments because they contravene the public policy of upholding marriage and the objective of maintaining the legitimacy of children. While the statute states that judgments of‘nullity of marriage “may” be rendered in particular cases, New Jersey law still recognizes the difference between void, marriages and voidable marriages.

A void marriage possesses some essential defect going to the heart of the marital relationship and is susceptible to collateral attack. Meanwhile a voidable marriage permits the marriage to be directly attacked by the party attempting to invalidate it, but may also be ratified by that party by otherwise removing the impediment. With this distinction, bigamous marriages have been deemed void, while marriages contracted with impotent parties are said to be voidable.

Simple fraud or mere lying by one-party to another have, in recent years, has been held to be insufficient grounds for annulment. New Jersey courts have shown an increasing reluctance to grant annulments where one party fraudulently conceals some fact, or misrepresents an aspect of his personal or sexual history, except where it has been shown that the misrepresentation went to the essentials of the marriage relationship.

Similarly, efforts to invalidate so‑called sham marriages, entered into for the purpose of securing permanent residence status for immigrants, have been rejected where the essential components of the marital relationship were still found to exist.

The law of annulment in New Jersey is not governed by any statute of limitations, but it is subject to equitable defenses such as laches, estoppel and ratification. The plaintiff’s burden in an annulment suit is to adduce proof by clear and convincing evidence, although the “preponderance of the evidence” standard has been applied in cases seeking annulment on the grounds of the existence of a prior marriage.

7. I have been married for three years, and I have never had any sexual relations with my spouse. We are getting along miserably, and I now want to file for an annulment. Can I obtain an annulment based on the lack of a sexual relations in the relationship?

A family court may annul a marriage wherein one of the parties determines before the marriage that he or she will not engage in sexual relations with the other after the marriage, and the marriage remains unconsummated. See, Bolmer v. Edsall, 90 N.J. Eq. 299 (Ch. 1919), Ysern v. Horter, 91 N.J. Eq. 189 (Ch. 1920).

It has been repeatedly held that, if a husband or a wife, prior to getting married forms a fixed determination never to have children and does not communicate such a fact to the intended spouse and then refused to engage in marital relations without contraception, then the marriage can be annulment. Pisciotta v. Buccon, 22 N.J. Super. 114 (App. Div. 1952); Williams v. Witt, 98 N.J. Super. 1 (App. Div. 1967).

The plaintiff must prove that at the time of the marriage the defendant harbored an intention to abstain from sexual relations after getting married. Moreover, the plaintiff must prove that this intention was concealed from the plaintiff, and that such intention has been carried out.

The intention must have exited prior to the marriage. The subsequent failure of a spouse to fulfill his/her marital duties will not justify an annulment case. The plaintiff has the burden or providing by clear and convincing evidence not only of the existence of the intent not to have children but that it existed before getting marriage.

8. My wife lied to me because she failed to disclose the fact that she can’t have children. Is the fact that she is sterile grounds for an annulment?

In New Jersey impotence and sterility is a sufficient cause to justify granting an annulment. There is ample case law wherein a court has granted an annulment based on the ground that one party has concealed his or her impotence or sterility. A marriage will not be annulled unless there is proof that the impotent party knew of the defect at the time of the marriage, and the complaining spouse was ignorant of this factor at the time of the marriage.

9. My husband lied to me because he failed to disclose the fact that he has a lengthy history of mental illness. Is the fact that my husband has concealed his mental disease(s) a sufficient ground to annul my marriage?

Probably not. There is no New Jersey case law that has annulled a marriage based on the ground that one spouse has failed to disclose his or her mental illnesses. In the case of Storf v. Papalia, 24 N.J. Misc. 145 (Ch. 1946), the court held that it would not annul a marriage based on that ground that the defendant concealed her previous confinement in an insane asylum. The fraudulent concealment of a mental illness has been held to be no ground for the annulment of a marriage. See, Houlahan v. Horzepa, 46 N.J. Super. 583 (Ch. Div. 1957). Finally, a marriage is not rendered void by the failure of one of the parties to disclose her mental history to the other party. Id.

10. My wife lied to me because she failed to disclose her drug addiction to me before we got married. Is the fact that my wife failed to disclose her drug addiction a sufficient ground to annul my marriage?

Voluntary drug addiction is a ground for divorce under N.J.S.A. 2A:34-2(e), and it may also constitute extreme cruelty. In addition, the concealment of a drug addiction has been held to be a sufficient ground to annul a marriage. In my experience the failure to disclose a drug addiction is a very popular ground to base an annulment case on.

In the case of Costello v. Porsezlt, 116 N.J. Super. 380 (Ch. Div. 1971), the court held that the concealment of a heroin addiction was premarital fraud that extended to the essentials of the marriage. In the Costello case, the wife was granted an annulment because she discovered her husband’s heroin addiction shortly after they were married. The parties only dated each other for one month. The wife observed needle marks on her husband’s arm upon going to sleep one night. The husband then admitted to his drug addiction and he also admitted to selling certain household items to obtain money to buy drugs. The court ruled that the addiction to drugs strikes at the essentials of a marriage, and it constitutes blatant fraud. Therefore, the court granted the wife an annulment.

11. My husband lied to me because he told me he was a multimillionaire businessman. Instead, my husband is now almost broke, and he only works temp jobs. Is the fact that my husband misrepresented his financial position a sufficient ground to annul my marriage?

A review of New Jersey case law with regard to false representations about a party’s fortune or personal wealth has long been held to be insufficient to annul a marriage. New Jersey courts have consistently held that false misrepresentations about a person’s financial position do not strike at the essential of a marriage, and are not sufficient grounds to annul a marriage. See, Woodward v. Heichelbeck, 97 N.J. Esq. 253 (Ch. 1925).

12. My husband lied to me because he told me he was a practicing Jew. However, after we got married he never goes to temple, and I am not even certain that he practices the Jewish faith. Is the fact that my husband misrepresented his religious conviction a sufficient ground to annul my marriage?

The answer to this question would turn on the specific facts of the case. New Jersey courts have held that misrepresentations of religious conviction may amount to “fraud” as to the essentials of the marriage. Illustrative is the case of Bilowit v. Dolitsky, 124 N.J. Super. 101 (Ch. Div. 1973). Here, the plaintiff wife married the defendant husband on the representation that he was a practicing Jew. There was no doubt that the marriage had been consummated. The wife was a very devout Orthodox Jew. The wife’s religious convictions were made known to the husband before the marriage, and he agreed to follow the requirements of her religion. However, the husband was not an Orthodox Jew and he never intended to live in that religion.

The court held that it was clear that the wife’s religious beliefs and convictions of her husband were an essential part of the marriage. Therefore, the court held that since the husband has substantially and knowingly misrepresented his religious beliefs to her, and since the wife relied on these promises, the court held that the fraud was substantial. Therefore, the court granted an annulment.

13. My husband lied to me because he told me he would agree to adopt my children from my first marriage. However, after we go married he changed his mind, and he does not want to adopt my children. Is this a sufficient ground to annul my marriage?

It is not uncommon for a prospective husband to promise to adopt the children of his future wife. If after the marriage is consummated the husband changes his mind, and if he refuses to adopt the children from the wife’s prior relationship, can this misrepresentation constitute a ground for an annulment? A review of New Jersey case law indicates that it would be very difficult to annul a marriage on this ground. Illustrative is the case of Gibbs v. Gibbs, 92 N.J. Eq. 542 (Ch. 1921). Here, the husband made a false promise that he would adopt his wife’s illegitimate child. However, after they were married, he refused to do so. The wife then filed for annulment. The court refused to annul the marriage because it ruled that this false promise did not go to the essentials of the marital relationship.

In summary, if a wife sues to annul a marriage on the ground that she was induced to marry based on the fraudulent promises that her new husband would adopt her children from a prior relationship, then there must be clear and convincing proof. The wife must prove that her husband concealed his true intention not to adopt the children. This could be very difficult to prove if not impossible.

14. My husband lied to me because he told me that he did not have a criminal record? However, after we got married, I found out that he is a convicted sex offender. Is this a sufficient ground to annul my marriage?

Maybe. There is no recent case law on this type of factual scenario. The only on point case is Brown v. Brown, 34 N.J. Super. 261 (Ch. Div. 1954). Here, the court held that even though the husband before the marriage, concealed his criminal record, it would not annul the marriage. The court held that concealing a person’s criminal record is not a  fact that goes to the very essence of the marital relationship, and it is not a ground to annul a consummated marriage.

15. Are there still alimony and equitable distribution issues in an annulment case?

The choice of whether to grant an annulment or a divorce implicates the statutes governing alimony and equitable distribution. Where a marriage is void ab initio, and declared as such by a judgment of nullity, an award of alimony is not authorized. However, New Jersey courts have awarded alimony in nullity actions in consideration of each party’s need and ability to pay and the duration of the marriage, and where justified, alimony pendente lite awards have been made in annulment actions. Similarly, the language of N.J.S.A. 2A:34-23 excludes annulment actions from the kinds of family matters in which equitable distribution awards are authorized. However, under contract law and, equitable principles, the courts have divided property in annulment cases.

16. I have endlessly surfed the “net” to determine if my marriage can be annulled. Could you please list the different type of New Jersey annulment cases.

A. Broken Promises

Akrep v. Akrep, 1 N.J. 268 (1949); (The wife was induced to consent to a civil marriage ceremony on husband’s false promise to have a religious ceremony in two months was entitled to annulment of ground of fraud).

B. Drug Addiction

Costello v. Porzelt, 116 N.J. Super. 380 (Ch. Div. 1971); (The husband’s concealment of a heroin addiction constituted fraud warranting annulment; the cohabitation following knowledge of fraudulent concealment of physical or mental condition which strikes against the central purpose of marriage operates to defeat the cause of action for annulment since non-ratification upon disclosure is prerequisite to the cause of action).

C. Duress

Capasso v. Colonna, 95 N.J. Eq. 35 (Ch. 1923), affirmed, 96 N.J. Eq. 385 (An annulment based on duress was denied where the man threatened a woman that if she did not marry him then the next day he would kill her brother).

D. Failure to Disclose Illegitimate Children

Tobon v. Sanchez, 213 N.J. Super. 472 (Ch. Div. 1986) ;(The husband’s failure, before marriage, to disclose two illegitimate children did not go to “essentials” of marriage so as to provide wife grounds for annulment; clear and convincing fraud as to the essentials of marriage not established where the husband told his wife he did not want any more’ children and that if she became pregnant she would have to have an abortion).

E. Failure to Disclose Mental Illness

Houlahan v. Horzepa, 46 N.J. Super. 583 (Ch. Div. 1957); (The fraudulent concealment of mental illness and of prior commitment to insane asylum was held not to be grounds for annulment).

Buechler v. Simon, 104 N.J. Eq. 572 (Ch. 1929); (The unintentional failure to disclose insanity attack 20 years before marriage did not constitute deceitful concealment authorizing annulment).

F. Failure to Disclose Pregnancy

B. v. S., 99 N.J. Super. 429 (Ch. Div. 1968); (An annulment was granted wherein the wife concealed from her husband at time of marriage the fact that she had become pregnant by another man).

Lindquist v. Lindquist, 130 N.J. Eq.(1941); (The fraudulent concealment of premarital unchastity was not a ground for nullification, but the concealment of pregnancy at time of marriage may justify annulment; the concealment of pregnancy by another man did not automatically entitle the husband to an annulment if he also had intercourse with her before marriage).

G. Fraudulent Marriages

V.J.S. v. M.J.B., 249 N.J. Super. 318 (Ch. Div. 1991); (After consummation, the fraud must be of extreme nature, going to one of the essentials of marriage, to entitle the plaintiff to annulment; the concealment prior to marriage of intent to have children contrary to expressed antenuptial agreement not to have children was fraud which went to essentials of marriage and warranted annulment).

H. Health

Busch v. Gruber, 98 N.J. Eq. 1 (Ch Div. 1925); (The wife was entitled to an annulment based on fraud where the husband concealed his epilepsy then he started suffering epileptic fits shortly after the marriage).

Davis v. Davis, 90 N.J. Eq. 158 (Ch. 1919) ;(The husband’s concealment of tuberculosis constituted a fraud thus warranting an annulment).

Minder v. Minder, 83 N.J. Super. 159 (Ch. Div. 1964); (A prior marriage, inability to consent, and other disabilities make contract of marriage void from the outset).

I. Immigration Fraud

Patel v. Navitlal, 265 N.J. Super. 402 (Ch. Div. 1992); (The husband failed to establish that wife married him for sole purpose of entering United States, and the action for nullity was based on fraud denied where both parties testified they intended to live as husband and wife).

Lopez v. Lopez, 102 N.J. Super. 253 (Ch. Div. 1968) ;(An annulment was granted wherein the plaintiff entered into a contract for marriage by proxy then refused to join the plaintiff in the United States and never consummated the marriage; The failure of proxy marriage to comply with statutory requirements such as solemnization  qualified for annulment).

Faustin v. Lewis, 85 N.J. 507 1105 (1981); (The wife’s marriage, entered into for sole purpose of securing permanent residence in the United States, established statutory ground for an annulment).

J. Issues on Decision to Have Children

Williams v. Witt, 98 N.J. Super. 1 (App. Div. 1967); (The clear and convincing evidence standard applied to wife seeking annulment on grounds that husband concealed his decision never to have children).

Pisciotta v. Buccino, 22 N.J. Super. 114 (App. Div. 1952) ;(An annulment was granted where a spouse hid decision never to have children, and he then refused to engage in sex without contraception).

V.J.S. v. M.J.B., 249 N.J. Super. 318 (Ch. Div. 1991;) (The court held that the defendant husband fraudulently misrepresented to his wife prior to their marriage and he agreed not to have children. Subsequently, however, he refused to use birth control during sexual relations. The court found that the defendant possessed a preconceived, uncommunicated determination at the time of the marriage to have children in the face of an express agreement with the intention not to have children. The court further stated that  public policy encourages the full disclosure of the pertinent facts in the contemplation of entering a marriage. Therefore, the court then annulled the marriage.

K. Impotence

T. v. M., 100 N.J. Super. (Ch. Div. 1968); (An annulment was granted where a woman was impotent due to vaginismus caused by psychological problems, and she became pregnant while still a virgin with intact hymen as a result of husband’s ejaculation against the vulva causing a “splash pregnancy” which culminated in miscarriage).

Osborne v. Osborne, 122 N.J. Eq. 12 (1937) ;(An annulment was warranted where the wife knew herself to be incapable of bearing children but failed to disclose that fact to the prospective husband).

J.B. v. G.B., 111 N.J. Super. 33 (Ch. Div. 1970); (The husband’s own suit for annulment based on his impotence was granted despite the filing of counterclaim for divorce on ground of extreme cruelty).

Donati v. Church, 13 N.J. Super. 454 (App. Div. 1951) ;(Where the wife’s vagina was too small to allow copulation, although her husband frequently inserted tip of his penis, such as un-felt intercourse was held not to be sufficient to rebut the finding of the wife’s impotence).

D. v. C., 91 N.J. Super. 562 (Ch. Div. 1966); (An impotent woman entitled to annulment where she was ignorant of such impotency it time of marriage and there was no, ratification of the marriage).

L. Premarital misrepresentations

Brown v. Brown, 34 N.J. Super. 261 (Ch. Div. 1954); (An annulment denied based on husband’s allegedly fraudulent premarital representation that he would adopt wife’s illegitimate child; The husband’s alleged criminal record did not go to the very essence of the marriage relationship and therefore was not grounds for annulment).

Gerard v. DiStefano, 84 N.J. Super. 396 (Ch. Div.1964); (The non-disclosure of a prior marriage and divorce was held insufficient to constitute fraud warranting annulment).

L.  Sexual Dysfunction

Godfrey v. Shatwell, 38 N.J. Super. 501 (Ch. Div. 1955) ;(The knowledge of the wife’s sexual incapacity, combined with outpouring of love for wife despite, sexual problems constituted a ratification of the marriage and precluded an annulment on the ground of the wife’s impotency).

M. Religious Grounds

Bilowit v. Dolitsky, 124 N.J. Super. 101 (Ch. Div. 1973) (In a consummated marriage, the plaintiff was entitled to an annulment on the basis of fraud, where the defendant misrepresented his religious status as a practicing orthodox Jew).

N. Underage Marriages

Wilkins v. Zelichowski, 26 N.J. 370 (1958); (Here a 16-year-old wife who failed to confirm her marriage after turning 18 was entitled to an annulment. The marriage ceremony took place in Indiana, as a scheme to evade New Jersey marriage policy, and  both parties were domiciled in New Jersey).

O. Void Marriages

B. v. L., 65 N.J. Super. 368 (Ch. Div. 1961) ;(The parental consent to marriage of 16 year‑old girl did not make marriage absolutely binding so as to preclude annulment for underage).

M.T. v. J.T., 140 N.J. Super. 77 (App. Div. 1976), certification denied, 71 N.J. 345 (Here a transsexual successfully converted from a male to a female. The transsexual then married a man. The court held that the subsequent marriage to a male was not void).

Richards v. Richards, 139 N.J. Super. 207 (Ch. Div. 1976); (A purported marriage was held to be void where one of the parties has another wife or husband living).

16. My husband is trying to annul our marriage. His primary motive in trying to annul our marriage is because he does not want to pay alimony, or split his assets with me. What are the defenses to annulment suits?

The most basic defense to an annulment case is to deny one or more of its prerequisites. The defendant may deny that the marriage is unconsummated. The defendant may deny that he had a drug or alcohol problem before he got married. The defendant can deny that he had any mental illnesses before he got married. The defendant can deny that he promised his wife that he would adopt her children. The defendant can deny that he promised to have children with his wife. The defendant can deny that he misrepresented his financial position with his wife.

It is also important to note that an annulment case will not be granted if the plaintiff has ratified and confirmed the marriage. Basically, this means that the plaintiff married the defendant even though he or she was fully aware of the any concealed fact or misrepresentation(s).

Another major defense is called laches. Laches is a defense based on equitable principles. Basically laches mean that if a party delays bringing a lawsuit, then this can constitute a bar. A spouse can’t file for an annulment if he is complaining of a misrepresented or a concealed fact that has existed in their marriage for many years.

The most popular defense to an annulment case is called the doctrine of unclear hands. This defense is also based on equitable principles. This doctrine is applied on a case-by case basis. The family court has the discretion whether to use and recognize this defense. Basically, this defense provides that a court can’t grant a person an annulment if he or she has in fact acted unfairly and deceptively in the marriage.

The doctrine of unclean hands has been applied where the plaintiff remarried after his first wife told him she had gotten a divorce from him. See, Hansen v. Fredo, 123 N.J. Super. 388 (Ch. Div. 1973). Here, the plaintiff received no divorce papers and made no request of any. When the plaintiff learned that his first wife had not received the divorce until after his second marriage he continued to live with his second wife for an additional six months. The court denied the plaintiff an annulment even though the second marriage was bigamous relations. The court held that after weighing the equities it found that the plaintiff was guilty of having “unclean hands.” Therefore, the court denied his application to have an annulment.

17. What type of relief can a family court grant in an annulment case?

In addition to nullifying the marriage, the court has the authority to make an award of custody of any children born to the parties, as well as order the payment of child support and related relied. The court may also award either party temporary, permanent and/or rehabilitative alimony. N.J.S.A. 2A:34-23.

Notwithstanding the foregoing, the family court does not have the authority in annulment cases to enter a judgment for the equitable distribution of property. Equitable distribution can only be awarded in a divorce case. The scheme for distributing property in annulment case is that all property is retained as same may by individually titled. If real estate is held jointly, then there is rebuttable presumption that the parties hold title as tenants in common and share ownership equally.

18. I have reviewed your website, and I still can’t decide whether I should file for a divorce or for an annulment. What should I do?

Each family law case must be decided on a case by case basis. If your main goal is to save on legal fees, then I would advise you to file for a divorce. A spouse does not have an automatic right to obtain an annulment. There must be some type of fraud or material misrepresention(s) as to the essentials of the marriage for a court to grant an annulment. Therefore, the legal fees to handle an annulment case are substantially higher than in a divorce case.

Nonetheless, there are significant advantages in obtaining an annulment. For women, an annulment may be beneficial for social purposes. If a marriage is annulled, then this outcome may be more beneficial than living with the stigma of being a divorce. There are also significant financial advantages in filing for an annulment. A court is much less likely to award alimony if a marriage is annulled. Additionally, equitable distribution is not used in an annulment case. Therefore, in many cases a spouse can avoid losing a significant amount of his property via equitable distribution if a marriage is annulled.

Another important factor in deciding whether to pursue a divorce or an annulment is based on strategic considerations. Quite often, the facts that underlie an annulment complaint are very embarrassing. A shrewd lawyer can file for an annulment and use it as leverage to obtain a favorable settlement. An annulment complaint can be used to encourage a recalcitrant spouse to reach a reasonable settlement. Many spouses will be encouraged to settle a matrimonial dispute rather quickly if he is served with an annulment complaint that may contain some embarrassing information.

In summary, understanding whether a marriage can be annulled is a very “tricky” legal analysis. I would advise any person who is considering whether to pursue an annulment to discuss his case with an experienced matrimonial lawyer who has at least ten years of experience. I would then ask the lawyer if his factual scenario is similar to other New Jersey case law wherein marriages were annulled. Additionally, if you want to pursue an annulment you have to be prepared to spend some money on legal fees. Remember, you don’t have an absolute right to an annulment. Annulments are not commonly filed. Nonetheless, if you prepare your case correctly, and if you can prove some type of fraud, or if some material misrepresentation(s) were made, then you can still obtain an annulment. However, you will have to provide briefs to the court, and prove your case. The court will not grant you an annulment merely because you filed for one.

In my legal career I have obtained many annulments. A common factual scenario wherein an annulment is granted is when one spouse turns gay during the relationship. This type of factual scenario occurs quite often. A court most likely will grant an annulment based on this ground. I have obtained an annulment wherein I have proved that one spouse has turned gay during the marriage.

Another frequent ground to file for annulment is based on the scenario wherein one spouse marries a U.S. citizen solely for immigration purposes. It is almost impossible to annul a marriage based on the grounds of marriage fraud. All too frequently, a U.S. citizen claims he was a victim of marriage fraud by a foreign national solely to become a U.S. citizen. There is very scant legal authority that suggests that annulment suits based on immigration fraud can be successful.

19. Are there any recent annulment cases that have been decided by the New Jersey judiciary?

Yes, a very interesting case that was recently decided is Yaghoubinejad v. Haghighi, 384 N.J. Super. 339 (App. Div. 2006). Here, the question was whether a marriage performed in accordance with the Islam religion but without the parties having obtained a marriage license is void? The Appellate Division held that the marriage was void. More specifically,  the court held N.J.S.A. 37:1-10, passed in 1939, abolished common law marriage and established two prerequisites for a valid marriage: (1) the issuance of a marriage license pursuant to N.J.S.A. 37:1-2; and (2) the performance of the marriage before a person, religious society, institution or organization authorized by N.J.S.A. 37:1-13 to solemnize marriages. The court further held that the failure to comply with both of these requirements renders the marriage absolutely void. Accordingly, the Appellate Division reversed the ruling of the trial judge that the absence of a marriage license was a deficiency that was cured by subsequent “Validating Acts.”

This type of scenario often arises with many of my Indian and Pakistani clients. Many people from India and Pakistan only have a religious ceremony and they never obtain the necessary marriage certificate from their own country. Many years after they move to the United States and split up, the legal issue then arises whether the parties have a legal marriage.  A review of the Yaghoubinejad case indicates that the parties were never married. In many of these types of cases, many hundreds of thousands of dollars can be saved if the husband can actually raise meritorious grounds to try to void the marriage. If the marriage is declared void or non-existent then the wife will have to pursue some type of palimony claims. However, bear in mind that it is difficult to prove a palimony claim.

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