When considering an end to a marriage there are many terms used that may be unfamiliar, or misunderstood, such as divorce, legal separation, and annulment.  While the vast majority of marriages nationwide are legally valid, some marriages are defective in some way.  This is not to say that the parties to the marriage are defective, but rather some defect existed at the time the parties entered into the marriage.  The term “annulment” is often viewed as a better option than divorce.  However, this is misleading.  Every marriage is personal and unique, and seeking an annulment is not always a valid legal option to terminate a marriage.

Divorce v. Annulment

Divorce terminates a marriage, but recognizes the marriage did exist at one time.  An annulment is an adjudication that the purported marriage was not valid in the first place.  Once a marriage is annulled, it is as if the marriage never happened.  While a divorce terminates a marriage as of the date of the divorce judgment, an annulment declares that the marriage is void from the outset.

Because the marriage is seen to have never happened in the eyes of the law, it is important to contemplate the impact of an annulment versus a divorce.  If you are considering your options, discuss the following topics with a competent family law attorney: maintenance, division of property, availability of awards of attorney’s fees, child custody, child support, and the availability of temporary relief during the pendency of the action.

In Missouri, there is a strong public policy in favor of marriage, and therefore it is difficult to have a court grant an annulment.  Annulments are more likely to be granted if the marriage was very short, there were no substantial marital assets, debts, or children born to the parties.  There also must be a specific and compelling reason why the marriage should be annulled.  Some of the reasons accepted by the court include fraud, duress, concealment, mental incapacity, and refusal or inability to consummate the marriage.

Fraud

Marriages seen as fraudulent often include one spouse lying to the other about his or her ability to have children, not being the age of consent at the time of the marriage, or lying about his or her sexual orientation. A marriage may be seen as fraudulent if the specific issue in question would have affected the decision to marry.

Duress

A marriage may have grounds for an annulment if the marriage was entered into during a time of duress by either party.  To claim duress, a spouse would have to have entered into the marriage, for example, under force, blackmail, trickery, bribery, etc.

Concealment

To ask for an annulment based on concealment, it must be proven that one spouse was hiding something serious from the other.  This requires that one spouse was deliberately kept in the dark about something that is a serious part of the other spouse’s life.  Missouri courts have found that concealing the following facts might be grounds for an annulment: a serious drug or alcohol conviction, addiction to sex, drug, or alcohol, conviction of a violent felony, or a party has children from a previous relationship.  Some courts have also held that concealing the fact that one spouse has a serious sexually transmitted disease is also grounds for an annulment.

Mental Incapacity

A marriage could be found voidable and thus available for an annulment if one of the parties to the marriage did not have the mental capacity to enter into the marriage in the first place.  However, the threshold for mental capacity required to enter into marriage is lower than that required of other legal acts.  If at the time of the marriage one party did not have the mental capacity to know and understand the nature of the contract of marriage due to insanity, or intoxication, a court will likely see this marriage as void and therefore an annulment is the only remedy to terminate the “marriage.”

Refusal or Inability to Consummate the Marriage

A marriage may have grounds for annulment if the marriage was never consummated.  If a spouse is unable to consummate the marriage and has concealed this fact from his or her new spouse, it may be possible to have the marriage annulled.  However, sometimes a marriage is not consummated due to one spouse refusing to consummate the marriage for personal reasons.

Void and Voidable Marriages

Marriages can be considered void and voidable.  Void marriages are considered invalid from the moment they are entered into.  For example, if a party marries his or her first cousin, while this act leads to a valid marriage in over twenty states, it is not valid in Missouri.  Therefore, the first cousins’ marriage would be void, and the parties may seek an annulment.

A voidable marriage can be annulled, but it isn’t automatically considered invalid by the court.  For a marriage to be voidable, one party has to assert the marriage is void.  Examples of voidable marriages include marriages that were entered into under fraud, duress, error, etc.  A voidable marriage can become valid if the obstacle making it voidable is removed.  An example of this is a couple getting married and one party is under the age of 18.  In Missouri, in order for a person between the ages of 15 and 18 to enter into a valid marriage, the person must first get written consent from his or her custodial parent in order to get a marriage license.  If two people get married without proper consent, the marriage is voidable.  However, once the underage spouse reaches the age of 18, the parties to the marriage may ratify the marriage, thereby rendering it valid.

If you or someone you know is going through a difficult time with his/her spouse and doesn’t know whether to divorce, legally separate, or get an annulment, it may be time to turn to an attorney.  Kathleen Shaul is an experienced family law attorney who is able to assist her clients with both advice and advocacy.  If you would like to get legal advice about your individual situation, contact us now to schedule a confidential consultation.