What if the requirements for a marriage have not been met?
This question usually arises when a couple decides to go their separate ways.
Where there is a valid marriage, termination of marital status is obtained through a dissolution or divorce lawsuit, which results in a judgment that returns both the man and the woman to the status of an unmarried (single) persons.
If the marriage was not valid, for reasons that existed at the time of the purported “marriage” , the union between the man and the woman can be treated as being “void” or “voided”, and grounds for a lawsuit of nullity (annulment of marriage) may be pursued in state court.
There are some differences between a marriage that is “void” and one that is “voided”. With a “void” marriage, the marriage never existed, so the man and woman are treated as if they were never married. There are no grounds for spousal support (although property rights between the respective man/woman may be established through contract law). Grounds for a “void” marriage include:
incest (marriages between parents and children, brothers and sisters, aunts/uncles and nephews/nieces, and ancestors and descendants of every degree)
bigamy (one or both spouses were not unmarried (single) person at the time of the marriage)
With a “voided” marriage, the marriage is valid until it is terminated by a judgment of nullity. This means the obligations and rights between the respective spouses continue until a court of law issues a judgment of nullity. Grounds for a voided marriage typically include:
one spouse was underage at the time of the marriage and failed to obtain the proper consent
one spouse lacked the mental capacity to give consent (unless the spouse later regains mental capacity and continues to freely cohabit with the other spouse)
consent to the marriage was obtained through fraud (unless the defrauded spouse continues to freely cohabit with the other spouse with full knowledge of the facts and circumstances of the fraud)
consent to the marriage was obtained through force (unless the coerced spouse continues to freely cohabit with the other spouse in the absence of further force or threat)
A “putative spouse” is a man or a woman who has a good faith belief, as would any reasonable person under similar facts and circumstances, that there is a valid marriage. Because the “putative spouse” believed s/he had entered into a valid marriage, s/he often has rights despite the void or voided nature of the marriage. If the other “spouse” knows the marriage is not valid, that “spouse” does not get the benefit of putative spouse rights. Some of the rights of a putative spouse include the right to distribution of marital property, spousal support, attorney fees to the “innocent” spouse if needed to pursue the lawsuit, and survivorship rights.
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