What is the difference between a divorce and an annulment?

Many couples may wonder if they can seek an annulment rather than going through the divorce process.

So what is the difference between an annulment and a divorce?

The primary difference between a divorce and an annulment is that a divorce formally ends a marriage. An annulment on the other hand, declares a marriage as “invalid,” null and void.

A Utah court may order a marriage annulled only in a limited number of circumstances:

30-1-17.1.  Annulment – Grounds for.

A marriage may be annulled for any of the following causes existing at the time of the marriage:

(1) When the marriage is prohibited or void under Title 30, Chapter 1, Marriage.

(2) Upon grounds existing at common law.

Marriages prohibited by law are fairly rare occurrences, but if you want to see if perhaps your marriage is one of them, see Utah Code § 30-1-1 and § 30-1-2[1]

So what are the “common law” grounds for annulment?

It’s really hard to say! I have researched this subject many times, and I can’t find an article or treatise that comes right out and states, “here’s what the common law grounds for annulment are or were historically.” Here is the best I can find:

In no particular order (and without claiming this is an exhaustive list):

  • Fraud[2]
  • Unlawful Marriages (incestuous, bigamous)
  • Duress; Undue Influence
  • Physical or Mental Incapacity (impotence, incapable of contracting for want of understanding, temporary insanity, intoxication that so greatly impaired the mental abilities of a party as to render that party incapable of assenting to the marriage)

Interesting tidbit from 4 Am. Jur. 2d Annulment of Marriage § 3 (Grounds for annulment of marriage, generally): “While it is the function of the legislature, and not of the judiciary, to establish new grounds for the annulment of marriages,[3] the fact that a statute enumerates certain grounds for annulling a marriage has been held not to necessarily imply that no others exist.[4]

Bottom line: few people wanting to end a marriage qualify for an annulment. For most people, divorce is their only option to bring about an end to their marriage by court action.

Utah Family Law, LC | | 801-466-9277

[1] 30-1-2.  Marriages prohibited and void:

The following marriages are prohibited and declared void:

(1) when there is a husband or wife living, from whom the person marrying has not been divorced;

(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;

(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;

(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and

(5) between persons of the same sex.

Utah Code § 30-1-1.  Incestuous marriages void:

(1) The following marriages are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate:

(a) marriages between parents and children;

(b) marriages between ancestors and descendants of every degree;

(c) marriages between brothers and sisters of the half as well as the whole blood;

(d) marriages between uncles and nieces or aunts and nephews;

(e) marriages between first cousins, except as provided in Subsection (2); or

(f) marriages between any persons related to each other within and not including the fifth degree of consanguinity computed according to the rules of the civil law, except as provided in Subsection (2).

(2) First cousins may marry under the following circumstances:

(a) both parties are 65 years of age or older; or

(b) if both parties are 55 years of age or older, upon a finding by the district court, located in the district in which either party resides, that either party is unable to reproduce.

[2] Haacke v. Glenn, 814 P.2d 1157 (Court of Appeals of Utah 1991):

Under common law, a marriage could be annulled for a fraud going to the essence of the marriage. Wolfe v. Wolfe, 62 Ill.App.3d 498, 19 Ill.Dec. 306, 309, 378 N.E.2d 1181, 1184 (1978); Avnery v. Avnery, 50 A.D.2d 806, 375 N.Y.S.2d 888, 890 (1975); Douglass v. Douglass, 148 Cal.App.2d 867, 307 P.2d 674, 675 (1957); Bing Gee v. Chan Lai Yung Gee, 89 Cal.App.2d 877, 202 P.2d 360, 364 (1949). The fraud must be such that directly affects the marriage relationship rather than “merely such fraud as would be sufficient to rescind an ordinary civil contract.” Bing Gee, 202 P.2d at 364. The misrepresentation must go to present and not future facts. Wolfe, 19 Ill.Dec. at 310, 378 N.E.2d at 1185. Further, the fraud must be material to such a degree that, had the deceived party known of the fraud, he or she would not have consented to the marriage. Avnery, 375 N.Y.S.2d at 890. “The test in all cases is whether the false representations or concealment were such as to defeat the essential purpose of the injured spouse inherent in the contracting of a marriage.” Douglass, 307 P.2d at 675.

As to the form the fraud takes, it may “consist of an affirmative false representation or the withholding of the truth when it should be disclosed.” Costello v. Porzelt, 116 N.J.Super. 380, 282 A.2d 432, 434 (1971).

In determining fraud, courts have adopted a subjective standard and have considered the facts of the particular marriage. Wolfe, 19 Ill.Dec. at 311, 378 N.E.2d at 1186 (where husband concealed his prior marital history from Roman Catholic wife); Costello, 282 A.2d 432 (where husband omitted to tell wife of his heroin addiction); *1159 Lamberti v. Lamberti, 77 Cal.Rptr. 430, 432, 272 Cal.App.2d 482 (1969) (where husband’s secret intent in marrying was to acquire an advantageous alien status and where he falsely promised to go through a subsequent religious ceremony); Parks v. Parks, 418 S.W.2d 726 (Ky.1967) (where wife falsely represented at time of marriage that she was pregnant); Kober v. Kober, 16 N.Y.2d 191, 211 N.E.2d 817, 264 N.Y.S.2d 364 (1965) (where husband failed to disclose his extreme anti-Semitism to wife); Handley v. Handley, 179 Cal.App.2d 742, 3 Cal.Rptr. 910 (1960) (where wife secretly intended not to live with husband and not to adopt his name); Osborne v. Osborne, 134 A.2d 438 (D.C.1957) (where husband secretly intended not to live with his wife); Rathburn v. Rathburn, 138 Cal.App.2d 568, 292 P.2d 274, 277 (1956) (where wife secretly intended not to consummate the marriage); Vileta v. Vileta,53 Cal.App.2d 794, 128 P.2d 376, 377 (1942) (where wife did not disclose her infertility); Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474 (1931) (where husband falsely told wife he loved her and did not disclose that real reason for marriage was to avoid deportation). See also Leventhal v. Liberman, 262 N.Y. 209, 186 N.E. 675 (1933) (where husband did not disclose he had tuberculosis and was a narcotics addict).

[3] Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 47 A.L.R.2d 1388 (1955).

[4] Browning v. Browning, 89 Kan. 98, 130 P. 852 (1913).

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