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Can my marriage still be annulled if my husband is missing?

December 3, 2018 Our Blog

The rules about divorces, separations, and marriage annulments vary widely from state to state. Each state court has their own protocols for dealing with different marriage breakdowns. In New York, the annulment law states that an annulment cannot be obtained if the person’s spouse is currently missing.

Annulments are different from divorces, although the two things accomplish the same end result. Both processes are used to legally do away with a marriage. With a divorce, though, the marriage is acknowledged as being a valid union that is now dissolved. Annulments, on the other hand, treat the marriage as though it was never valid to begin with.

Annulments can be less complicated than divorces, but it really depends on the circumstances. The main goal of an annulment is usually for both spouses to move on as though the marriage never happened. However, not all marriages can be voided. Under New York law, your marriage must meet certain criteria if you want to have it annulled.

Grounds for Voiding Marriage in New York

New York is a state that allows marriages to be automatically voided if they meet the right circumstances. If the couple was violating state marriage laws, their marriage would be voided right away. One example would be spouses who are closely related by blood.

If it’s not obvious that state laws have been voided, you can still take steps to get the marriage annulled. For an annulment, you need to have a state-approved reason for your annulment. Your reasoning is referred to as the grounds for the annulment. New York marriage law has very strict definitions of grounds. You can get your marriage annulled if you meet any of the following circumstances:

  • You or your spouse is impotent
  • One party was underage when the marriage occurred
  • Fraud was committed
  • One party could not legally consent due to a medical issue

With cases of impotency, one spouse cannot have sexual intercourse with their spouse. The medical condition they have cannot be cured. If the non-impotent spouse wishes to have their marriage annulled, they need to provide proof that they were unaware of the condition before the marriage.

If either or both of the parties were under the age of 18 when they got married, this can be grounds for an annulment. New York law does not allow anyone below age 14 to get married. People from ages 15 to 17 can legally marry someone if they have the permission of their guardian. Unfortunately, annulments cannot be obtained if you still live with your spouse and are now over the age of 18.

Fraud can refer to any number of circumstances. In its most basic definition, fraud occurs when one party lies to the other about relevant information or fails to disclose important information. One example would be a spouse not telling their spouse that they were still legally married to another person. If the marriage was officiated under duress, this also falls under the fraud clause.

The insanity clause applies if one or both of the spouses has a mental condition that makes them unable to consent to the marriage. People who don’t understand the ramifications of marriage are not able to legally consent to be married.

Divorce May Be the Best Option

If your spouse has abandoned you, you should know that you don’t need to be trapped in that union. Even though an annulment isn’t possible under the circumstances, there are other legal avenues you can pursue. The easiest option is divorce. A divorce legally ends a marriage and frees both parties to marry other people.

If you wish to initiate divorce proceedings, you need to file a petition. The petition will include the grounds for the divorce. There are multiple legal reasons that a divorce can occur in New York. The one most relevant to this particular case is probably abandonment.

To get a divorce because of abandonment, there are a few things you need to prove.

You need to prove that your spouse’s disappearance was solely so they could leave their marriage. This means that a spouse moving for work or the military cannot qualify as “abandoning.”

The spouse must have been away from home for at least one consecutive year.

You need to illustrate that you have made attempts to reconcile and work on your issues, and that your spouse rejected these attempts.

If you and your spouse have children together, you must prove that your spouse isn’t paying the child support they are responsible for.

Can our marriage be annulled if it was never consummated?

In New York, an annulment cannot be obtained due to a lack of consummation. Traditionally, a married couple will enforce their marriage by consummating it after the wedding. Historically speaking, if a couple failed to consummate the marriage, it would not be considered legally binding. In some other states, failure to consummate is still legal grounds for an annulment. New York isn’t one of them.

An annulment is one of two ways to end a marriage. The other way is divorce. With an annulment, the marriage is dissolved by the court like it was never real. Annulments are a way to void a marriage that was legally valid. The marriage is then viewed as something that never existed. If you marry another person after an annulment, that union will be considered your first marriage.

Annulment in New York is divided into two circumstantial categories: voidable marriages and void categories.

Void Marriages

If a person enters into a void marriage, this means the union wasn’t legal in New York. By state law, the marriage is already void. Courts cannot uphold a union that doesn’t abide by the law. There are several types of marriages that are automatically void:

Incestuous marriages occur when the spouses are related. Familial relationships covered by this include full siblings and half siblings, aunts and nephews, and uncles and nieces.

There are some rare situations in which a person may assume their spouse is dead. This can happen if their spouse has gone missing after a military engagement or natural disaster. They may remarry another individual. If their spouse comes back and is actually alive, the second marriage is immediately void because the first marriage was never actually ended.

For a marriage to be considered legally binding, it must be solemnized by someone holding that power. New York DRL 11 outlines a list of the individuals authorized to perform marriages. Marriages performed by non-authorized individuals will not be recognized by the state.

Voidable Marriages

While a void marriage is a marriage that was never legal, a voidable marriage is a legally valid marriage. Both parties must have been legally permitted to form a marital union.

Voidable marriages can be terminated if one party pursues an annulment. However, unlike void marriages, they aren’t automatically voided by the state. The marriage will remain valid and legally binding if neither party pursues an annulment.

If you want to have your marriage annulled, you must meet one of several specific circumstances. Different states have different legal grounds for annulment. In New York, valid grounds for annulment are:

  • Incurable mental illnesses
  • Inability to consent
  • Underage parties
  • Fraud, duress, or force
  • Impotency

An incurable mental illness will not always be grounds for annulment. However, if a mental illness or impairment causes one spouse to be unable to understand the marriage contract, they cannot legally consent. This can be cited as grounds for annulment. In addition, if a person has a substance use disorder or chronic mental illness, and they did not disclose it to their spouse prior to the marriage, there may be grounds for an annulment.

If you, your spouse, or both of you were below the age of 18 when the marriage occurred, this is often grounds for annulment. New York law does not allow people under 15 years of age to be married. Marriages can occur for 15 to 17 year olds if they have their parent’s permission. However, New York’s age of consent is 18. Marrying below the age of consent gives you grounds for an annulment.

Marriages are legally binding contracts. Like all legally binding contracts, the people who sign them must freely consent. If there is force or duress involved, the forced partner did not consent of their own free will. This is grounds to annul the marriage.

Similarly, fraud violates the legally binding contract of marriage. If the marriage was entered under false pretenses, the deceived spouse cannot be held to the terms of the contract. The marriage can be dissolved.

While simply not consummating the marriage doesn’t make it voidable, a complete inability to consummate does. There must be proof that the spouse has an incurable medical condition. For an annulment due to lack of consummation, one spouse must have an incurable condition.



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