If you want to find out how long do you have to annul a marriage in New York, the first step is to figure out whether your marriage is void or voidable.
Void marriages are marriages that are invalid from the beginning. There is no time limitation to request a declaration of the marriage’s nullity because it is void. The three types of void marriages are: bigamous marriages (N.Y. Dom. Rel. Law § 6), incestuous marriages (N.Y. Dom. Rel. Law § 5), and marriages where the solemnizing officer lacked authority to perform the marriage ceremony (N.Y. Dom. Rel. Law § 11; Ranieri v. Ranieri, 146 A.D.2d 34 (N.Y. App. Div. 1989)).
Voidable marriages are marriages that are invalid but can be ratified with consent. For this reason, there is a time limitation to file a proceeding to annul the voidable marriage. The five grounds to annul a voidable marriage are: (a) one or both spouses were under 18 years of age at the time of marriage; (b) one or both spouses were unable to consent to the marriage due to mental incapacity; (c) either spouse is physically unable to consummate the marriage; (d) either spouse was incurably mentally ill for at least 5 years; and (e) consent was obtained by duress, force, or coercion. N.Y. Dom. Rel. Law § 7.
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A bigamous marriage is a marriage where at least one of the spouses has an existing, valid marriage at the time the second, bigamous marriage was celebrated. An incestuous marriage is a marriage celebrated between the following related parties, whether legitimate or illegitimate: (a) an ancestor and a descendant; (b) a brother and sister of either the whole or the half-blood; and (c) an uncle and niece or an aunt and nephew. The third type of void marriage is a marriage performed by an unauthorized solemnizing officer.
There is no time limitation to file a proceeding to declare the nullity of a marriage because these marriages will always be void. However, the proceeding should be filed by the spouse during the lifetime of either spouse.
Voidable marriages, on the other hand, are invalid only from the time a court annuls the marriage. A voidable marriage can be ratified when a spouse continues to cohabit freely with the other spouse after the ground ceases or is discovered.
When at least one of the spouses was under 18 years of age at the time of marriage, the proceeding to annul the marriage can be made by the underaged spouse, his/her parent or guardian, or by any person considered next friend of the underaged spouse before reaching 18 years of age. This cannot be filed by the spouse who was of age at the time the marriage was celebrated or the underaged spouse who continued to cohabit freely with the other spouse after reaching 18 years of age.
When at least one of the spouses was mentally ill or intellectually disabled at the time of marriage, that person was unable to give his or her consent to the marriage. A proceeding to annul the marriage may be filed by any relative of the mentally ill or intellectually disabled person during the lifetime of either party or after the death of the mentally ill person but during the lifetime of the other spouse. The other spouse, who was not mentally ill, can file a proceeding to annul the marriage at any time during the continuance of the mental illness, provided that spouse did not know of the mental illness at the time of marriage. If the parties freely cohabited as husband and wife after the mentally ill person was restored to a sound mind, then the proceeding to annul the marriage cannot be filed anymore.
When at least one of the parties is permanently physically unable to consummate the marriage, the injured party can file the proceeding against the alleged incapacitated party within 5 years from the time of marriage upon proof that the incapacity continues and is incurable. The incapacitated party can also file a proceeding to annul the marriage if he was unaware of the incapacity, or if aware, did not know it was incurable.
When at least one of the parties’ consent was obtained through fraud, duress, or force, the proceeding can be filed during the lifetime of the parties by the party whose consent was obtained through fraud, duress, or force, or by a parent, guardian, or relative who has an interest to avoid the marriage, provided that the statute of limitations for fraud has not lapsed or the parties did not cohabit freely as husband and wife, despite full knowledge of the facts constituting the fraud or upon cessation of the duress or force.
When one of the parties has an incurable mental illness for at least 5 years, the proceeding to annul the marriage can be maintained by any of the parties to the marriage. When figuring out how long do you have to annul a marriage in New York, this is an important deadline to consider.
Divorce vs. Annulment or Declaration of Nullity
While divorce can be contested or uncontested, an annulment or declaration of nullity always requires the presentation of evidence to prove the presence of the grounds for annulment or declaration of nullity. In an uncontested divorce case where the ground is irretrievable breakdown of the marriage for at least 6 months, no proof is required except for the consent and signature of both spouses to the divorce.
Because of the presentation of evidence required in a declaration of nullity or proceeding to annul a marriage, an annulment is more expensive than a divorce. Deciding whether to get an annulment or divorce depends on the parties involved. If you need to separate from the other spouse you need to know how long do you have to annul a marriage in New York in your particular case, we at the Law Offices of Albert Goodwin are here for you. You can call us at at 1-718-509-9774 or email at [email protected].