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Void or Voidable? Parsing the Language in Considering Annulments and Divorce

Divorce and annulment are two ways of terminating the legal relationship between two married spouses.  Whether your planned or intended separation falls into one or both categories is largely determined based on whether in the marriage is void or voidable.  The difference between these two characteristics is one that often leaves even law students scratching their heads. But if you are contemplating an annulment or a divorce, it is important to understand the lingo.

Void

If you are seeking a divorce, you are seeking to end a valid marriage, not to void the marriage itself.  Courts describe the concept of whether something is void as whether something is a “nullity”, not necessarily a helpful clarification of the word’s meaning.  A simple way to understand the concept of something being void is to consider the direction in which the decision goes. Something that has been ended used to be valid and now is not. But when a marriage is determined void, the marriage is annulled and the courts declare that a valid marriage never existed at all; it was void at its inception.

If a marriage is void, it likely is so because it offends public policy in a clear and obvious way.  Marriages involving polygamy or incest are examples of void marriages, as well as marriages involving bigamy.  It is worth noting that if a marriage is void, it is not the court’s declaration that makes it void; that is, an incestuous marriage is void at the outset, and a court’s declaration that it is void is simply a recognition of that fact.  Even so, parties to a void marriage may wish to receive an annulment and obtain that recognition in order to provide certainty and peace of mind for themselves and to establish a public record that the marriage is and was void.

Voidable

A voidable marriage is one that is recognized as valid for all purposes until it is declared a nullity.  Distinct from parties to a void marriage, only parties expressly permitted by statute to assert the voidability of the marriage may do so.  Some examples of voidable marriages are those that are induced by fraud, those in which one party is too young to have had capacity to enter into the marriage, or intoxication or incapacitation of one of the parties at the time the marriage took place.  If one party so desires, they can elect to void the marriage, but if nobody does so, the marriage is not invalid like void marriages; instead, it was and continues to be valid.

What Difference Does It Make?

For some parties, this makes little to no difference, but for other parties, the difference between whether a marriage is void or voidable is a big deal.  Voidable marriages cannot be made void or annulled, even at the request of a party, if the other party dies.  In one commonly cited family law case, Patey v. Peaslee, the determination of whether a marriage was void or only voidable determined whether a spouse could receive a share of an estate.

Is a marriage, annulment, or divorce beginning to make your head spin?  Are you still questioning the legalese of family law?  At Schwartz | White in Boca Raton, our experienced family lawyers can assist you.  Call 561-391-9943 today for a consultation.

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