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Annulment and Declaration of Nullity of marriage are still the top issues most clients ask or inquire about. Indeed, there are numerous individuals I personally know who are in a complicated situation because they are estranged from their spouses but are now cohabiting with another- who may also be married. The situation is very sad and unfortunate for many because the cost of having their marriage declared void or annulled is almost prohibitive. I tend to incline towards the statement of some that having an annulment or declaration of nullity is a luxury. Perhaps our society has to accept the notion of undergoing marriage counseling in order to address issues within marriage. It might even be better if a course tackling family life will be required in high school and college. It might not entirely address the issue but at least help in minimizing separation of spouses. But anyway, let me just offer a simple clarification on the difference between “declaration of nullity” as opposed to “annulment”
Declaration of Nullity of Marriage
In cases of Declaration of Nullity the marriage is really non-existent even if there is semblance of marital union. The marriage may have the appearance of validity (like a signed and registered marriage contract) but in fact has no legal existence, “void ab initio” or not valid from the beginning. If so, why is there a need for parties to go to court and undergo the expensive process of litigation to have the marriage declared null and void? The answer is simple: you cannot put the law into your own hands. Being the interpreter of laws, the courts have to determine if indeed the union entered into by the parties has not complied with the applicable provisions of law. One important thing about declaration of nullity cases is the fact that the action does not prescribe. A party cannot be prevented by the lapse of a certain period from instituting the action of declaration of nullity in court.
Annulment of Marriage
Marriages that can be annulled are considered “valid until annulled”. The marriage union is a valid one except that if the concerned party annuls it through court action the marriage tie is severed. It is almost like divorce but the ground is not the often abused: “irreconcilable differences”. The grounds for annulment are mainly defects on some elements of the marriage. For instance, a “shot gun” marriage (where either or both parties were forced to enter into marital union) may be annulled by the aggrieved party within five years from the time the force ceases otherwise if the aggrieved cohabits with the other spouse beyond the said period he or she can no longer bring an action of annulment. Here the element of consent is defective by reason of the force.
So Why Are They Not the Same?
Although the end result will be the same -either party can marry again, the grounds and effects of the actions are not. It will be too lengthy if the grounds will be enumerated here. While an action for declaration of nullity does not prescribe since the marriage cannot be ratified, an action for the annulment of marriage must be instituted within a limited time the lapse of which bars the action forever. Children born within a void ab initio marriage are considered illegitimate but children born within “valid until annulled” marriages are considered legitimate. These are just some of the significant differences between the two. The reader is strongly advised to schedule an appointment with a lawyer to fully discuss the necessary processes in the institution of the proper action in court.
Withal, I personally do not endorse the institution of actions for the severance of their marriages. Efforts should still be exerted by the parties to settle their marital problems as much as possible.