ANNULMENTS VERSES NO FAULT DIVORCE

Annulments are commonly sought for a short-term marriage when there are no children. Since New York now allows for “no fault” grounds for a divorce, annulments are less sought out.  However, if you still wish to pursue an annulment, here is relevant information that you will need to know prior to starting the process:  

First, there are five grounds for annulling a marriage: (1) failure of a party to have reached the age of consent; (2) lack of understanding of our actions (generally seen when one party is mentally challenged); physical incapacity to consummate the marriage; (4) consent to marry was obtained by force, duress, or fraud; and (5) an incurable mental illness for five or more years.

The Court of Appeals in Brillis v. Brillis, addressed an action for an annulment based upon fraud.   In this case, the husband was an immigrant and his visa was about to expire which would result in him being forced to leave the country.  He convinced his wife to marry him with promises of returning and remarrying within the Greek Orthodox Church. He also promised to provide for her and that they would live together as husband and wife.  The parties were first married in a civil ceremony, but upon the husband’s return, he refused to get married in church.    The Court held that in order to induce marriage, a person makes a promise of a subsequent religious ceremony, without the intent on keeping it, an annulment will be granted.  The key to this ruling seems to be two-fold.  First, the Court of Appeals focused on the fraudulent inducement of marriage.  The various promises which were made in order to get one spouse to marry the other. Second, the Court of Appeals also focused on the fact that the parties neither cohabitated nor consummated the marriage.  Thus, the Court also relied heavily on the fact that the parties did not behave like a married couple. In Avnery v. Avnery, the Appellate Division held that to obtain an annulment based upon fraud, the complaining party must demonstrate that the alleged fraud is “material, to the degree, that had it not been practiced, the party deceived would not have consented to the marriage.”

Annulments are hard to obtain, especially when the marriage is consummated.  If you are contemplating an annulment, make an appointment to see an attorney. Try to find one that will not charge you for a consultation fee.  With the no fault divorce statutes, and the stringent requirements for an annulment, you may be better off seeking a divorce through the new no fault grounds.