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Can I get an annulment instead of a divorce?

Many people call me asking about whether they can get an annulment instead of a divorce. Their reasons are almost always the same: “I would prefer to say that I am not divorced.” 

Although the stigma of divorce is not nearly as great as it was a generation or two ago, there are many people who still would prefer to say they are not divorced. Others may have religious reasons for seeking an annulment over a divorce. And there are some situations where divorce may disqualify someone from receiving an inheritance or similar benefit. 

I completely understand the desire to end a marriage without divorce.  

The problem for most people who want an annulment over a divorce is that there are fewer and more particular grounds for annulment than there are grounds for divorce. Otherwise stated, while some grounds for divorce may also be grounds for annulment, just because one might have grounds for divorce does not mean one also has grounds for annulment. 

This, from AmJur2d, § 1 (Annulment of marriage, generally), makes several important points:  

By definition, an annulment is a declaration that a purported marriage never existed. It is a judicial determination to set aside a marriage that was invalid at its inception because of some defect existing at the time of the marriage.  

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A marriage should not be set aside lightly, and annulments of marriage are disfavored in the law. 

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An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. 

In Utah, where I practice divorce and family law, this is the statute that governs an action for an annulment of a marriage: 

Utah Code § 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. 

First, we will cover common-law grounds for annulment. The Utah Code does not identify what the common law grounds for annulment are. It is hard to find a “master list” of common law grounds for annulment, but here’s what I was able to find generally: 

  • Failure to consummate marriage; refusal of sexual intercourse 
  • Incapacity based on age (under age of consent) 
  • Lack of intent to enter into binding marriage 
  • Marriage induced by fraud 
  • Prior subsisting marriage 

Next, we will cover the statutory grounds for annulment (Utah Code § 30-1-17.1. Annulment—Grounds for). What kinds of purported marriages are prohibited or void? 

Incestuous marriages (Utah Code Section 30-1-1) 

  • When there is a spouse living, from whom the individual marrying has not been divorced; 
  • When an applicant is under 18 years old, unless the applicant: 
    • is 16 or 17 years old and obtains consent from a parent or guardian and juvenile court authorization in accordance with Section 30-1-9; or 
    • lawfully marries before May 14, 2019. 

And there is this statute that deals with one aspect of annulment: 

Utah Code § 30-1-17.  Action to determine validity of marriage — Judgment of validity or annulment. 

When there is doubt as to the validity of a marriage, either party may, in a court of equity in a county where either party is domiciled, demand avoidance or affirmance of the marriage, but when one of the parties was under 18 years old at the time of the marriage, the other party, being of proper age, does not have a proceeding for that cause against the party under 18 years old. The judgment in the action shall either declare the marriage valid or annulled and shall be conclusive upon all persons concerned with the marriage. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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