By William G. Morris
Question: My partner and I are breaking up. A friend of mine told me that I should have my marriage annulled rather than divorced. Can you explain how to get a cancellation?
Answer: The grounds for divorce (dissolution of marriage) in Florida are set forth in Section 61.052 Fla. Stat. The evidence must establish that the marriage is irretrievably broken down or the mental incapacity of one of the parties. Establishing a marriage that is irretrievably broken is easy to do, as it only takes testimony from one party. An action for dissolution of marriage admits the validity of the marriage and seeks to terminate it on the basis of legal criteria. The annulment action claims that the marriage is invalid.
Florida does not have a law establishing grounds for cancellation. The grounds for cancellation are common law, much of which was inherited from England.
Grounds for dissolution of marriage arise after the marriage has ended. Grounds for annulment exist at the time of the alleged marriage. And, it gets even more complicated. A marriage that can be annulled can be void or voidable. Void marriages are those which are so defective that the law renders them absolutely void. A void marriage can be challenged at any time by anyone.
A voidable marriage is a marriage that suffers from a defect that could be corrected or annulled by the action of the parties after the marriage. It generally cannot be contested by one of the parties.
Perhaps the most well-known ground for annulment is bigamy. A bigamous marriage is a marriage in which one or both parties were married to others at the time they got married. Bigamy is also a third-degree felony, although criminal laws provide exceptions to prosecution, such as reasonable belief that a former spouse is deceased.
Incestuous marriages are void. Florida defines incest as marriage to a parent or child, aunt or uncle, niece or nephew.
A Florida law prohibits same-sex marriages, which invalidates any same-sex marriage contracted in Florida. Recent challenges to this law on constitutional grounds, as well as recent court rulings, may eliminate this ground for nullification.
The same law also requires parties to be over the age of 18, with exceptions for parental consent and pregnancy. Underage marriages are voidable, not void, and can be annulled by the underage party at any time before or soon after their 18th birthday.
Physical inability to consummate the marriage renders the marriage voidable. Impotence is defined as the inability or lack of ability to have normal sexual intercourse.
Since marriage is a contract, grounds for terminating or voiding a contract can also be grounds for annulment. When a party is forced to marry to the extent that free will is destroyed, the marriage is voidable, but cannot be attacked after the death of either party.
Lack of mental capacity is also grounds for annulling a marriage. Depending on the circumstances, this may render the marriage void or voidable. Permanent mental incapacity usually nullifies the marriage, while temporary incapacity makes it voidable. Annulments have been granted when a party was continuously in a coma from the time of marriage until death, when a party suffered a brain injury that made that party easily influenced, and even when a party was excessively drunk. to give valid consent.
In some cases, fraud may be grounds for cancellation. If the fraud caused the other party to enter into marriage and the marriage has not been consummated, it is voidable. But, if the marriage has been consummated, it is much more difficult to annul the marriage.
In some cases, the action of the parties may prevent them from obtaining the annulment. A party can be barred where that party knew of the default at the time of the marriage and entered into the marriage anyway. If a party discovers the defect and does not take any action for a considerable time, the party can also waive the claim for annulment of the marriage.
Unlike proving that a marriage has broken down irretrievably for purposes of divorce, establishing a ground for annulment can be difficult, especially since the ground is often abandoned by the action of the parties. If you believe your situation qualifies for annulment, you should discuss your facts and circumstances with an experienced attorney.
William G. Morris is an attorney whose offices are located at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a wide range of topics, including civil litigation, real estate, business and corporate law, estate planning and probate, family relations and contracts. He periodically writes this column regarding legal issues that frequently affect non-lawyers. The information in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, email: [email protected] or by fax, (239) 642-0722. Other articles of interest can be found on our website, www.wgmorrislaw.com.