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Void vs. Voidable Marriages in New York: What’s the Difference?

By The Law Offices of Paul A. Boronow, PC on July 17, 2015

NY Divorce AttorneyIn an annulment, a marriage is declared null and void, as if it never existed. This is somewhat different from a divorce, in which the marriage is recognized to have existed, but is ending.

A marriage in New York may be annulled if the union is considered either “void” or “voidable.” Because these two categories differ slightly, it is important to know what the terms mean and how they might apply to your situation before seeking an annulment. A Long Island matrimonial law attorney with experience handling annulments can help.

Void Marriages

A “void” marriage is one that the state will not recognize, because it contravenes state law regarding marriage. Although a void marriage does not have to be officially annulled, doing so can make certain other tasks easier.

In New York, void marriages include:

  • Marriages between parents and their children, siblings, and an aunt or uncle with a niece or nephew. New York may recognize some such marriages, however, if they were legal in the state where they were performed and if the relationship is not too close.
  • Marriages in which one partner is still married to a living spouse.
  • A marriage solemnized by someone without legal authority to do so.

Voidable Marriages

A “voidable” marriage is one that can be annulled via a court judgment, but is considered legal until the date of that judgment. In some cases, a court may refuse to end a voidable marriage. If so, the parties must file for divorce if they wish to end the marriage.

In New York, voidable marriages include:

  • Marriages where one or both spouses are currently under the age of consent.
  • Marriages in which one or both spouses are not capable of giving informed consent due to intellectual disability or mental illness.
  • Marriages in which one or both parties are physically incapable of sexual relations.
  • Marriages in which one party consented under duress, force, or fraud.
  • A marriage in which one spouse has had an incurable mental illness for five years or more.

 

Posted in: Annulment

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