How to Make Sure Yours is Legal
Despite the best intentions, couples sometimes discover that their marriage is invalid. What they should do next will depend upon the issue in question.
There are basically two types of invalid marriages: those that are void and those that are voidable. Void marriages are those that cannot legally exist and therefore are deemed to never have been valid. Void marriages are generally limited to unions where one party is already legally married to someone else(bigamy) and those between underage parties (lack of consent) or close relatives(incest) .
In these cases, an annulment would be granted and the marriage would be legally “erased”, as if it never happened.
A voidable marriage on the other hand is a marriage that is technically invalid but isn’t immediately dissolved and continues as a valid union until an annulment is sought. This type of marriage doesn’t violate any moral principle and can at some point, become a legal union if circumstances change. This would include instances where the official presiding over the marriage wasn’t certified to do so or where the parties were underage but are now the age of consent and the marriage was never contested. In cases such as these, the court will normally try to honor the marriage if at all possible, assuming that both parties have continued to live as if the union were valid from the start.
In cases where deception occurred, many states allow for the deceived spouse to seek a divorce instead and treat the marriage as if it were a valid union. This is known as the putative spouse doctrine and provides certain rights and protections for parties who are led to believe they’ve entered into a valid marriage through their partner’s deception.
In this instance, the deceived spouse can seek a divorce and would have rights to property distribution and possible spousal support . If however, the deceiving spouse is the party trying to seek a divorce under the claim of an invalid marriage, the court may invoke the estoppel principle to prevent the deceiving spouse from benefiting from support and property division.
If it is determined that fraud or deception took place at the time of the marriage, the court will also consider when the deceived spouse discovered the fraud and the amount of time that lapsed before the annulment was sought. If the deceived spouse discovered the deception but then continued to live as a legally married couple for several years after, the courts will often set aside the request for an annulment on the grounds of fraud and instead treat the marriage as valid. The parties would then have to pursue a divorce to end the union.