Action for Judgment Declaring Nullity of Void Marriages or Annulling Voidable Marriage

In New York, the requirements for getting married are not complicated. The couple must show identification, get a marriage license, wait 24 hours, and get married by someone with the authority to do so. There are, however, restrictions that if violated would make the marriage void or voidable. Conditions that would make a marriage void include the marriage was incestuous, one of the parties was already married, or the marriage was solemnized by an unauthorized person. The conditions under which a marriage is voidable include where one or both of the parties was under age 18 and did not obtain parental consent, was mentally incapacitated, is unable to consummate the marriage, has an incurable mental illness, or the marriage was entered into based on duress, force, or fraud. While void marriages are illegal and not valid, voidable marriages are valid, but can be annulled by a court. Dom. Rel. Law section 140 describes the process for declaring the nullity of void marriages and for annulling a voidable marriage. To ensure that you get the outcome you desire for your marriage, contact an experienced New York family lawyer who understands the legalities related to void and voidable marriages.

A marriage that is void is unlawful from the inception. No court action is necessary to invalid, terminate, or annul the marriage. One of the three reasons that a marriage would be automatically void is if one of the parties was already married at the time he or she proceeded to marry another person. While there are instances in which people knowingly attempt to get married while they are still married to another person, there are also instances in which they do so under the mistaken belief that their spouse is deceased. What if it turns out that the deceased spouse is actually still alive?

Under NY Dom Rel Law § 140, either party to the marriage or the former husband or wife can bring an action to declare the nullity of a void marriage due to the former husband or wife actually being alive.

1. Action to annul marriage on ground of incurable mental illness for five years; procedure; support: New York Domestic Relations Law, section 141
2. Action for divorce: New York Domestic Relations Law, section 170
3. Action for separation: New York Domestic Relations Law, section 200

(a) Former husband or wife living. An action to declare the nullity of a void marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife.

(b) Party under age of consent. An action to annul a marriage on the ground that one or both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person as the next friend of the infant. But a marriage shall not be annulled under this subdivision at the suit of a party who was of the age of legal consent when it was contracted, or by a party who for any time after he or she attained that age freely cohabited with the other party as husband or wife.

(c) Party a mentally retarded person or mentally ill person. An action to annul a marriage on the ground that one of the parties thereto was a mentally retarded person may be maintained at any time during the life-time of either party by any relative of a mentally retarded person, who has an interest to avoid the marriage. An action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage. Such an action may also be maintained by the mentally ill person at any time after restoration to a sound mind; but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and wife after the mentally ill person was restored to a sound mind. Where one of the parties to a marriage was a mentally ill person at the time of the marriage, an action may also be maintained by the other party at any time during the continuance of the mental illness, provided the plaintiff did not know of the mental illness at the time of the marriage. Where no relative of the mentally retarded person or mentally ill person brings an action to annul the marriage and the mentally ill person is not restored to sound mind, the court may allow an action for that purpose to be maintained at any time during the life-time of both the parties to the marriage, by any person as the next friend of the mentally retarded person or mentally ill person.

(d) Physical incapacity. An action to annul a marriage on the ground that one of the parties was physically incapable of entering into the marriage state may be maintained by the injured party against the party whose incapacity is alleged; or such an action may be maintained by the party who was incapable against the other party, provided the incapable party was unaware of the incapacity at the time of marriage, or if aware of such incapacity, did not know it was incurable. Such an action can be maintained only where an incapacity continues and is incurable, and must be commenced before five years have expired since the marriage.

(e) Consent by force, duress or fraud. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force or duress may be maintained at any time by the party whose consent was so obtained. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained within the limitations of time for enforcing a civil remedy of the civil practice law and rules. Any such action may also be maintained during the life-time of the other party by the parent, or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage, provided that in an action to annul a marriage on the ground of fraud the limitation prescribed in the civil practice law and rules has not run. But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.

(f) Incurable mental illness for five years. An action to annul a marriage upon the ground that one of the parties has been incurably mentally ill for a period of five years or more may be maintained by or on behalf of either of the parties to such marriage.

If you have concerns about the validity of your marriage, you should immediately discuss your concerns with an experienced New York family lawyer. With over 20 years of experience representing clients throughout New York with complicated legal matters, the attorneys at the Law Offices of Stephen Bilkis & Associates can help. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.