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Articles: Divorce and Matrimonial Law

Annulments, Void Marriages and Voidable Marriages in New York

By J. Douglas Barics
Updated August 2019

1. Grounds for Annulment in New York

An annulment is a court proceeding to declare a marriage null and void from its inception. There are two classifications of marriages which may be subject to an annulment proceeding. The first are those marriages which are void at its inception (void ab initio) which do not require a judgment to make them void. A judgment acts as proof that the marriage is a nullity. The second are those marriages which are valid until annulled by a judgment of annulment. In these cases, it is the judgment itself that voids the marriage.

The grounds for an annulment are found in Domestic Relations Law sections 140 and 141. In addition, void marriages are defined in DRL sections 5, 6 and 7, and DRL 11 specifies who can officiate a marriage. Note that DRL 6 and 7 have matching causes of action in DRL 140, while DRL 5 and 11 have no corresponding cause of action. This apparent disparity is resolved by which type of action is brought.

If the cause of action is listed in DRL 140 or 141, then an annulment action may be brought under those grounds.

But if the marriage is void due to DRL 5 or failure to meet DRL 11, then the remedy is to bring a declaratory judgment to have the marriage declared void.

A related proceeding is a declaratory judgment to have a marriage declared valid; this is useful when this is a question whether the marriage is void or not, and the parties wish to have this issue determined by a court.

Thus, the following actions can be maintained:

  • An action for an annulment
  • An action to declare the nullity of a void marriage
  • A declaratory judgment as to the validity or lack thereof of a marriage

2. Action for an Annulment

An action for an annulment may be brought to annul a voidable marriage. The party bringing the annulment must establish sufficient proof to prevail, and failure to do so means the cause of action is not proven and the marriage will continue.

a. Party under age of consent: DRL 140(b)

A cause of action for an annulment under DRL 140(b) may be brought if one party is under the age of consent pursuant to DRL 7(1). The age of consent to marry in New York is eighteen. If a party is sixteen or seventeen years old, written consent of both parents (if living) is required, and if a party is fourteen or fifteen years old, both parental consent and a judge's approval is necessary as well. No person under fourteen may marry, see DRL 15-a.

If a party is under the age of eighteen, the underage party, either parent of the underage party, or the under age party's guardian or next friend, may seek to have the marriage annulled. It is the court's discretion whether to grant an annulment, taking into account all the facts and circumstances surrounding such marriage. The right to seek an annulment under DRL 140(b) terminates at age eighteen.


b. Party a mentally retarded person or mentally ill person: DRL 140(c)

An action for an annulment based on a party being incapable of consenting for want of understanding pursuant to DRL 7(2) is found in DRL 140(c).

In an action brought under DRL 140(c), the court will determine if a party to the marriage was capable of fully understanding the nature of the marital relationship and its consequences. If no relative is available to act on behalf of the spouse alleged to be mentally deficient, the court may allow a non relative to do so as the "next friend"

  1. Mental Retardation
    An action under this section based on mental retardation may be brought during the lifetime of either spouse, or by any relative of the mentally retarded spouse who has an interest in annulling the marriage.
  2. Mental Illness
    An action based on mental illness may be brought while the spouse is mentally ill, after the death of the mentally ill spouse but prior to the death of the surviving spouse. The mentally ill spouse may commence an action when the illness has been cured provided they don't cohabit after sanity is restored, which would ratify the marriage.

The spouse who is not mentally ill may file as well if four conditions are met.

  1. the other spouse was mentally ill at the time of the marriage,
  2. the non ill spouse was not aware of that illness,
  3. the action was brought as soon as the non ill spouse learned of the mental illness, and
  4. the mental illness is present when the annulment is prosecuted.


c. Physical incapacity: DRL 140(d)

An action for an annulment based on a party being incapable of entering into married state from physical cause pursuant to DRL 7(3) is found in DRL 140(d).

The inability to have sexual relations will be a grounds for an annulment if the condition is incurable, excluding speculative or potentially dangerous cures. Mere sterility will not suffice either.

Either party may seek an annulment under DRL 140(d). If the incapable party files, they will have to show they were unaware of the condition, or if they were aware, did not know it was incurable.

An annulment action under DRL 7(3) must be filed within five years. Since the five year rule is part of the statutory ground, it must be plead and proven and failure to do so will result in the annulment being denied. Contrast this with an affirmative defense asserted under CPLR 3018 which must be plead or is waived.

There is no right to a jury trial on this ground. DRL 143 specifically excludes a jury trial to an action brought under DRL 140(d).


d. Consent by force, duress or fraud: DRL 140(e)

An action for an annulment based on the consent to such marriage by was by reason of force, duress or fraud pursuant to DRL 7(4) is found in DRL 140(e).

Since marriage is a social contract, both parties must knowingly consent to the marriage of their own free will. The marriage may be annulled as void if either party consents as the result of duress, force, or fraud.

An action under DRL 140(e) may be brought by the party, a parent of the party, a relative of the party who has an interest in annulling the marriage. The action may be brought during the lifetime of the offending party. If the action is brought by a parent or family members, both spouses are necessary parties to the annulment.

For duress or force, the annulment may be brought at any time. The duress or force must be shown to have deprived the exercise of free will. If consent was necessary for the marriage, the parent or guardian who gave consent has a right to seek an annulment if the consent was given under duress or force.

When fraud is alleged, the action must be brought within three years of the discovery of the fraud. It must be shown that the fraud would have deceived an ordinarily prudent person, and that the consent was given due to the fraud. If the party alleging fraud failed to act prudently, the annulment will be denied.

If the parties cohabit after the time of duress or force, or after the discovery of the fraud, no annulment will be given, as the marriage will be deemed ratified. In order to prevail in an annulment under DRL 140(e), the injured spouse must immediately cease cohabiting with the other party.


e. Incurable mental illness for five years: DRL 140(f) and DRL 141

An action for an annulment based on one spouse having an incurable mental illness for five years or more under DRL 7(5) may be maintained under DRL 140(f) and 141.

This ground authorizes an annulment to be granted if one spouse develops an incurable mental illness for five years or more. The mental illness can develop after the marriage, as contrasted with DRL 7(2) which requires the mental disability to be present at the time of marriage. The illness must be in existence for at least five years, any lesser time will not suffice.

The action may be brought by either spouse or on behalf of either spouse. Under DRL 141, the court is authorized to award support to the mentally ill spouse, including a claim against the estate of the supporting spouse. Given the onerous requirements of proof, coupled with the prospect of potentially devastating financial burdens being placed on the supporting spouse, very few annulments are filed on this ground.


3. Action to Declare the Nullity of a Void Marriage

There is a single cause of action to obtain a declaration of a marriage void at its inception. When a party whose spouse is still living marries again, the new marriage is void. No proceeding need be brought to annul this marriage, but absent a judgment declaring it void, there is no proof that it is.

This action may be maintained under DRL 140(a), on the basis of DRL 6. New York will not recognize a bigamous marriage under any circumstances. DRL 140(a) allows the following parties to bring an action to declare a marriage void – husband and wife, during their lifetime of the other spouse, or by a former spouse.

Domestic Relations Law 6(1) reference to why the marriage was dissolved is a holdover from pre 1965 laws, which used to contain restrictions on remarriage following a divorce based on adultery. This provision has no effect whatsoever under current law.


4. Declaratory Actions for the validity or nullity of a marriage

There is no cause of action for an annulment or the declaration of a void marriage for any other ground. For cases such as incestuous marriage (DRL 5) or the marriage was not properly solemnized, (DRL 11) or any other reason not listed in DRL 140, the proper method is to file an action to obtain a declaratory judgment under CPLR 3001.


5. Ancillary Relief Available in an Annulment

All ancillary relief is available. Domestic Relations Law 236 B(2)(a) states that the provisions of 236 B shall apply to the following matters, and defines each one as a matrimonial action

  • for an annulment or dissolution of a marriage,
  • for a divorce, for a separation,
  • for a declaration of the nullity of a void marriage,
  • for a declaration of the validity or nullity of a foreign judgment of divorce,
  • for a declaration of the validity or nullity of a marriage,
  • and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce

It is the act of getting married that confers the authority of DRL 236 B, not the cause of action.

About J. Douglas Barics
J. Douglas Barics is a matrimonial attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "Annulments, Void Marriages and Voidable Marriages in New York" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.