Once commenced, your spouse’s death does not abate the Annulment proceeding. (California Code of Civil Procedure § 377.20). Your husband’s representative may be substituted into the action. (California Code of Civil Procedure § 377.30). A Nullity action (unlike a dissolution), seeks a judicial determination of whether or not a marriage was ever lawfully contracted. This is so because of the difference between an action for dissolution of marriage and one for nullity. Dissolution terminates the marital status, whereas Nullity seeks to inquire whether a marital status ever existed in the first place.
If you obtain a decree of nullity, the court finds that no legal contract of marriage ever existed. The decree also relates back to the date of the so called “marriage” and erases all of the consequences of any reliance on there being a relationship. If the marriage is based on fraud, for example, it can be used to establish grounds to avoid interspousal property transfers during the term of the voidable marriage.
Your marriage may be invalid for one of two reasons: The proper formalization required by California law for a valid marriage did not exist (license, solemnization or authentication).
The other reason to have a voidable marriage is if the marriage involved incest, bigamy, fraud, minor parties, force, or other concerns.
While the age of one of the spouses can invalidate a marriage, there are exceptions in certain cases. Suppose, for example, one of the parties was a minor, but then after reaching the age of 18, that party “freely cohabited with the other as husband and wife” (California Family Code § 2210(a)), the marriage may be considered valid. The length of the marriage may also become important since the minor has four years from the time s(he) reached the age of consent (California Family Code § 2211(a)(1)), to annul a marriage on these grounds.
Other grounds to annul a marriage in California include:
- Unsound mind: Either party was unable to understand the subject matter of the marriage contract and obligations.
- Physical incapacity: Either party was physically incapable of engaging in normal copulation, and such incapacity continues and appears to be incurable.
- Fraud: Either party’s consent to the marriage was obtained by some sort of fraud that goes to the very essence of the marital relation, such as concealment of sterility, an existing pregnancy, or of an intent not to terminate a sexual relationship with another.
The Law Offices of Link Schwartz and her legal staff are dedicated to serving Los Angeles family law needs. They provide with hands on, superior representation. Link can be reached at (310) 553-5465.