Your Marriage May Not Be Valid

A void marriage is a marriage that never existed under the law. Because the law does not recognize the relationship, no dissolution of such a union (eg, divorce or annulment) is necessary.

Examples include:

  • Incest--Dennis and Brenda are first cousins from California. They marry in Arizona in 1993. Although their marriage would be recognized in their home state, their marriage is void because Arizona prohibits legal marriages between cousins.
  • Prior undissolved marriage--Bart and Alice marry in Texas in 1990. Bart was formerly married in Louisiana, where his wife served him with a divorce petition in 1978. Bart never responded to the petition and assumed his wife finalized the divorce. In fact, she was unable to pay her attorney and the divorce was never granted. Bart and Alice's marriage is void because Bart is still legally married to his wife in Louisiana.

Many states also have a waiting period after a divorce before a new marriage may be contracted, so it is important to be aware of such limitations before remarrying. However, the law does recognize that a party in a void marriage may be unaware of such impediments. The courts will protect what it terms a "putative" spouse, i.e., a party who, in good faith, entered into what they believed to be a valid marriage. Protections include:

  • The right to inherit.
  • The right to a property division.
  • Legitimacy of children; and the right to seek child support.

Ending a Voidable Marriage

A voidable marriage, however, is a marriage that is technically invalid but may later be made valid by an act of the parties. A voidable marriage may be ended by either annulment or divorce. Failure to annul the marriage upon knowledge of the impediment to the marriage may cause a party to lose their right to an annulment.

Examples include:

  • Marriages before the age of consent--Tamlyn, 17, and Akira, 18, were married in Las Vegas after Tamlyn lied about her age. This marriage is voidable because she is underage. When her parents find out, they bring her home and have the marriage annulled. If Tamlyn's parents later consented to the marriage, or if the couple had continued to live together until she reached 18, the marriage would have been valid.
  • Marriages obtained by fraud or force--Harold and Margaret are both in their sixties. Margaret has been financially secure since the death of her first husband, so she has Harold sign a premarital agreement before they marry. After the wedding, Harold realizes that Margaret isn't going to support him in the style he expected. Because he admits to her that he was only looking for a meal ticket, Margaret is able to obtain an annulment based on fraud.
  • Marriage with a person of unsound mind (which, in some states, includes lack of capacity due to influence of alcohol or drugs).
  • Marriage when either party is incapable of consummating the marriage.
  • Marriage entered into as a jest or a dare.
  • Marriage when one party has a loathsome disease unknown to the other.

Article Written By

Johnette Duff, Attorney at Law
email | website