Void and Voidable Marriages in California

The legal requirements to obtain a marriage license in California are fairly basic. Generally, each party to the marriage must be unmarried and at least 18 years of age, the marriage ceremony must be performed by a person authorized to do so, and there must be at least one witness (for public marriages). But even with such basic requirements, many couples fall short of meeting them, whether intentionally or by mistake, which results in the marriage being void. In some cases, legally valid marriages can also be found void and may be annulled, which has a similar effect as divorce. If you’re considering a divorce but believe your marriage may be voidable, please contact a Stockton marital dissolution attorney. 

What Is the Difference Between a Void Marriage and a Voidable Marriage? 

A void marriage is one that is deemed to be invalid from the very beginning. As such, a void marriage is considered never to have existed at all. A voidable marriage, by contrast, is a legally valid marriage that nonetheless may be declared invalid due to a defect (discussed in detail below). Voidable marriages remain valid until a court determines that they are invalid (normally upon the petition of one of the spouses). These terms generally apply to both marriages and domestic partnerships in the state. 

Void Marriages 

Void marriages (i.e., those that are never valid) are those that are incestuous or bigamous. Under California Family Code § 2200, a marriage is incestuous if it is between parents and children, ancestors and descendants of every degree, siblings and half-siblings, and uncles or aunts and nieces and nephews. Such marriages are considered void from the beginning regardless of whether the relationship was legitimate or illegitimate. Under California Family Code § 2201, bigamous marriages — those in which one spouse is already married to someone else who is still alive — are automatically void unless: 

• The former marriage has been dissolved or adjudged null before the date of the subsequent marriage
• The former spouse is absent and not known to be living for at least five successive years immediately preceding the subsequent marriage
• The former spouse is believed to be dead at the time of the subsequent marriage. 

In both of the second two scenarios, the subsequent marriage is considered valid until it is adjudged to be null by a family law court. 

Voidable Marriages 

Voidable marriages can become a bit more complex than void marriages. Unlike void marriages, they are not automatically null. Rather, they may be voidable due to a defect concerning one or both of the spouses or the circumstances under which the marriage was obtained. Under California Family Code § 2210, a marriage is voidable if any of the following conditions existed at the time of the marriage: 

• Age: The spouse who initiates the proceeding was under the age of 18 unless he or she obtained consent from his or her parents and a court order 
• Prior marriage: The spouse of either party was living at the time of the marriage and the marriage to that spouse was in force and (a) the former spouse was absent and not known to be living for at least five successive years immediately preceding the subsequent message, or (b) the former spouse is believed to be dead at the time of the subsequent marriage. 
• Unsound mind: Either party was of unsound mind or unable to understand the nature of the marriage unless that party later came to reason and freely cohabited with the other as his or her spouse. This condition often arises when the party was under the influence of drugs or alcohol at the time of the marriage.
• Fraud: The consent of either party to marry was obtained by fraud unless the party whose consent was obtained by fraud later (and with full knowledge of the fraud) freely cohabitated with the other as his or her spouse. Fraud in this context must be something that would have affected the other party’s decision to get married had he or she known the truth (e.g., marrying only to obtain a green card). 
• Force: The consent of either party to marry was obtained by force (including domestic violence) unless the party whose consent was obtained by force later freely cohabitated with the other as his or her spouse
• Physical incapacity: Either party was unable to consummate the marriage at the time it was entered into and whose incapacity is continuing and incurable

The inquiry into whether a marriage is voidable is intensely fact-specific and will depend a great deal on the available evidence. For help building your case, please contact a Stockton marital dissolution attorney. 

Annulments Are Available for Voidable Marriages Under Certain Circumstances 

If a marriage is found to be voidable by a family law court, the family law judge may issue an annulment. This is a form of marital dissolution in which the court rules the marriage to be null and void as if it never existed. Similar to divorce, the effect of an annulment is to restore the parties to the status of unmarried individuals. In most annulments, there is no property division, as there can be no marital assets for a marriage that was legally invalid. 

Petitioners for annulment have a limited window of time to do so, depending on the marital defect at issue: 

• Age: Within four years of reaching the age of consent
• Prior marriage: Any time as long s both parties to the current marriage are alive
• Unsound mind: Any time before the death of either party to the marriage
• Fraud: Within four years of discovering the fraud
• Force: Within four years of the marriage
• Physical incapacity: Within four years of the marriage 

Contact a Stockton Marital Dissolution Attorney for More Information About Void and Voidable Marriages 

If you believe that your marriage is void or voidable, you should seek the counsel of an experienced attorney who can help you make the strongest case possible. For more information, please contact a Stockton marital dissolution attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.