Annulment of Arizona Marriage | Phoenix Divorce Attorney
Although marriage annulments are rare in Arizona, the procedure is still available when the necessary legal grounds exist. Just know that most couples file for divorce because annulment is not an option for them.
The legal theory behind annulment is that the marriage was not valid from the very beginning, which means a legal marriage never existed. Annulment returns the person’s status to single, having never been lawfully married in the first place. A couple could live together for years and hold themselves out as husband and wife, yet not be.
Marital relationships that are subject to annulment proceedings are classified as “void” or “voidable” and are sometimes referred to as nullified marriages. A void marriage is a nullity and void from the very beginning – prohibited marriages fall into this category, such as an incestuous marriage between brother and sister. By comparison, in a voidable marriage one of the parties has the right to annul the marriage, but he or she has not yet exercised that right. Arizona court proceedings are required to annul the voidable marriage.
» Civil Annulment, Not Religious Annulment
Before continuing further, we should clarify exactly what kind of annulment we are talking about here. In this discussion, we are referring to the legal process of annulment in Arizona. That is, an Arizona civil case wherein a petition is filed with the court and a judge hears the claim, makes a determination, and issues orders.
We are not discussing religious annulment, wherein a church tribunal may declare a marriage annulled so that one party can marry someone else in the Catholic Church or other. Consult with an experienced Arizona divorce lawyer with the Stewart Law Group about the requirements of a civil annulment. Communicate with your priest or pastor about the requirements of a religious annulment.
3 Common Misconceptions About Annulment in Arizona
We need to dispel a few common misconceptions about what annulment is in Arizona and what it is not, as discussed below.
1. Annulment Is Not a Quickie Divorce
First, the annulment process is not an expedited divorce in Arizona. There are similarities between divorce and annulment proceedings. For instance, in an annulment case the court awards custody of the children and orders payment of child support just as in a divorce. The key distinction between divorce and annulment is that only divorce can terminate a valid marriage. Arizona annulment is not possible when the spouses have a valid marriage.
If the marriage wasn’t legal, why file a petition for annulment with the court? The marriage may already be a nullity and void, but the annulment process is necessary to establish, or declare, for the record that no marriage exists. Annulment makes this a matter of record and, just as importantly, gives the court jurisdiction over related issues (namely child custody, parenting time, child support, and the division of property and debts). A petition for annulment will not be granted if the court determines that a valid marriage does indeed exist. Those spouses should contact a family lawyer about seeking divorce or legal separation.
2. Short or Long, Valid Marriages Are Not Annulled
Second, a marriage of very short duration (two weeks or a month, for example) does not qualify the marriage for Arizona annulment proceedings. The dissolution of a valid marriage, even a short one, must be accomplished through divorce proceedings. Many people are confused by this, so it is important to understand that the duration of a marriage is irrelevant to the analysis of whether the marriage is void or voidable. Even a lengthy “marriage” of many years could be annulled. The question should always be: “Is the marriage valid?” When the answer is “No,” annulment is possible.
3. Common Law Marriages
Third, Arizona law does not allow couples to enter into a common law marriage in this state. (Only a minority of states allow common law marriages, among them are Colorado, Utah, Texas, Montana, and Kansas.) If the couple has cohabitated in Arizona for years while holding themselves out to be man and wife, they still aren’t legally married under Arizona law.
However, if the couple entered into a common law marriage in a state where it is legal to do so (Texas, for instance) before relocating to Arizona, then they may be able to obtain a divorce in this state. The validity of the Texas common law marriage would have to be established first, before a divorce could be granted by the Arizona court. Best to consult with an experienced Phoenix, Arizona, annulment attorney about special circumstances like these.
Grounds for Annulment of a Void Marriage in Arizona
Arizona annulment procedures and jurisdictional requirements are mostly the same as with divorce. More specifically, on a petition by the injured spouse the Superior Court may determine that a marriage is null and void “when the cause alleged constitutes an impediment rendering the marriage void.” A.R.S. §25-301.
What constitutes an impediment to a valid marriage in Arizona? The court should annul the marriage if one or more of these grounds for annulment are proved:
» Duress or Lacking Consent
When someone is forced to marry, compelled because violence is threatened, the marriage is voidable and may be annulled. To be valid, a marriage requires voluntary consent. Forcing someone to marry under threat of serious physical harm (or domestic violence) is wholly inconsistent with voluntary consent.
» Insanity, Mental Illness, Lacking Mental Capacity
When someone marries while insane, mentally ill, or while lacking mental capacity such that the person could not give legal consent to marrying, there may be grounds for annulment. Such a marriage is voidable. A valid marriage requires contractual intent. An insane, mentally ill, or substantially mentally challenged individual may lack the legal capacity necessary to enter into a marriage contract. The person’s mental capacity at the time of the marriage is determinative, not the mental state before the marriage or mental state at some later date after the marriage.
» Temporary Insanity
When temporary insanity is alleged as grounds for annulment, then the person’s mental state when the marriage took place is controlling. It is possible, however, that the person experienced a lucid interval during his or her temporary or periodic insanity. If lucid at the time, then the marriage should not be annulled because lucidity means, at least arguably, that the person had the requisite mental capacity necessary at the moment to marry.
When one person was untruthful or intentionally misrepresented facts and information for the purpose of inducing, tricking, the other party into marriage, then the marriage is voidable and may be annulled on grounds of fraud.
When someone was intoxicated, drugged, or under the influence at the time the marriage ceremony took place. And if the degree of intoxication rendered the person unable to understand the meaning and consequences of entering into the marriage contract, then the marriage is voidable and may be annulled.
» Impotency, Inability to Consummate the Marriage
With annulment on the grounds of impotency, the complaining party must prove the other spouse was permanently and incurably impotent when the marriage took place and, furthermore, that the condition was not discovered until after the marriage.
» Lacking Parental Consent to Underage Marriage
Arizona has an age requirement for people who plan to enter into a marriage contract. A child under the age of 18 has to have a parent’s or guardian’s consent in order to legally marry. For a child under age 16 to marry, approval of a Superior Court judge is also required. If an underage person obtained a marriage license without parental consent or court approval, then the marriage is voidable. A.R.S. § 25-102.
» Incestuous Marriage
Incest is one ground for annulment. Arizona law prohibits marriage between parent and child; between grandparent and grandchild of every degree; between brother and sister of one-half or whole blood; between uncle and niece or between aunt and nephew; and between first cousins (with one exception). Such marriages are void and prohibited by law. A.R.S. § 25-101.
A person commits bigamy by entering into another marriage before the earlier marriage is legally dissolved in divorce or terminated. In Arizona, a spouse can only be married to one person at a time. Furthermore, the person who has a living spouse and who knowingly marries another person is guilty of a class 5 felony. A.R.S. § 13-3606.
» Mock Marriage
A mock marriage can occur when the parties never intended for the marriage to be binding on them, so legal intent to marry is absent. This so-called mock marriage is voidable. However, should their agreement to marry be done purposefully in order to carry out some specific agenda, the court may regard the union as a valid marriage. A valid marriage cannot be annulled.
» Same-Sex Marriage
By statute, a “marriage between persons of the same sex is void and prohibited” in Arizona. A.R.S. § 25-101(C).
Lastly, the court may consider other annulment grounds, too, so long as those grounds constitute an impediment rendering the marriage void.
With their marriage annulled, each party is free to marry someone new without having to obtain a divorce. Be mindful that, with annulment, both parties forfeit any rights they enjoyed previously as married persons, including the right to community property (marital assets), the right of succession and inheritance from each other, and the right to spousal maintenance (spousal support or alimony). When you need help with annulment in Phoenix, contact an annulment lawyer with the Stewart Law Group.