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Annulment and divorce have very different effects. A divorce dissolves a marriage. An annulment nullifies a marriage—makes it as if it had never been—when a party can show a legal reason that the marriage never could or should have existed.
Although you may have heard that you can only file for an annulment within a year of the wedding, this is not true in Arizona. If you discover grounds for an annulment, you can file at any time, although it may also be possible to get a divorce instead. A family law attorney can advise you about your situation and tell you how to move forward.
Grounds for Annulment in Arizona
Two kinds of marriages qualify for annulment: void marriages and voidable marriages.
Void Marriages
A void marriage never had a legal existence to begin with because the marriage itself was outside the law. The court must grant an annulment for a marriage proven to be void.
In Arizona, there are several types of void marriage:
- Incestuous marriage between siblings; parents or grandparents and their children; uncles, aunts, nieces, and nephews. First cousins may marry if they can prove their infertility. Az. Stat. § 25-101(B).
- Marriage of a minor under 16, or a minor between 16 and 18 to a partner more than 3 years older.
- Underage marriage without valid consent. Unless they are legally emancipated, minors between the ages of 16 and 18 must have the consent of a parent or guardian to marry. See § 25-102.
- Bigamous marriage. It is bigamy for someone with a living spouse to knowingly marry a new partner, unless the first spouse has deserted for five years and is not known to be alive. See § 13-3606.
- Marriage without a ceremony. There can be no marriage by proxy or by contract alone. The partners must appear before an authorized officiant.
- “Mock” marriage. If a couple has a wedding without a marriage license or an authorized officiant, the marriage will either be void or voidable, depending on whether one partner believed its validity in good faith. See § 25-111.
(You may see that Arizona still has laws on the books stating that same-sex marriages are void, but federal law currently overrides them.)
Voidable Marriages
Marriages are voidable if they are otherwise valid but there is a legal reason to dissolve them. Since marriage is a type of contract, both contracts and marriages may be voidable for many of the same reasons. In a voidable marriage, the wronged partner might choose to remain married and repair their issues if they wish, but they also have the right to file for an annulment.
A marriage can be voidable because of:
- Duress—the threat of physical force or another type of coercion. Both parties must openly and freely consent to marry.
- A lack of mental or physical capacity to consent. This includes intoxication as well as short-term or long-term incapacity.
- Fraud or deception, where one partner lied about a material issue before the marriage. This can include the partner’s actual financial state, religious beliefs, marital history, or any other facts that would have discouraged the other partner from the marriage.
- Impotence. The filing partner must show that the other partner was permanently, incurably impotent before the marriage took place and that they did not know about this before the marriage. Refusal to consummate the marriage is also grounds for annulment.
Advantages, Disadvantages, and Options
Annulment is the only choice for ending a void marriage. If you know or suspect that your marriage is void, talk to a family law attorney about whether and how you will need to file for annulment. However, if your marriage is voidable rather than void, you may have the option to divorce rather than file for annulment.
Annulment offers certain advantages that divorce cannot. Unlike divorce, there is no waiting period for annulment. The marriage is a nullity—effectively, you were never legally married (except for the purpose of legal paternity of children). You may want to make this publicly clear, especially if your religion requires it or if you have further legal problems with your partner. And since there was no marriage, there can be no spousal support or alimony awards after an annulment.
However, there may be reasons to choose divorce. It can be difficult to produce sufficient evidence of duress, deception, or lack of capacity, especially if it has been some time since the marriage began. And in your own situation, you may need a spousal support award.
Additionally, your religion may not recognize a civil annulment as sufficient without further ceremony or requirements. If you are in a covenant marriage, you will especially need to discuss your options with an attorney, as dissolution is more difficult to reach in covenant marriages.
After an annulment, each partner’s separate property remains their own. This includes gifts, inheritances, and any income or assets acquired before the marriage and after filing for annulment. See § 25-113. The court may still need to divide entangled assets between the partners unless they can reach an agreement.
The Wisest Course
It is not easy to decide what to do at the end of any marriage, let alone one that may never have been valid in the first place. Someone who wants an annulment may want to hurry through the filing process and get out of the situation. But there’s no reason to go it alone in court—you could risk your future and lose much more in the end.
Look for tough yet compassionate representatives for you and your family. Contact our experienced Arizona family law attorneys in Mesa and Glendale today at 623-253-8718.
