Invalid marriages can be considered either void or voidable. A void marriage is void from inception, meaning it was never a legal marriage to begin with. A voidable marriage, on the other hand, can be determined to be void at a later date.
Void Marriages include incest, bigamous marriages (where one spouse was already married at the time of the second "marriage"), or where the marriage was solemnized by an unauthorized individual. While void marriages do not necessarily require an annulment proceeding, as they are not legally recognized marriages, there are instances where an individual was a party to a void marriage may require a Declaration of Nullity from the Court.
Voidable marriages are far more common than Void marriages. Voidable marriages include the following:
• Fraud or Duress: the marriage was consented to under fraud or duress. It is important to note that establishing a claim for and Annulment on the basis of fraud is quite involved and requires very specific evidentiary proof. In addition, the party seeking to annul the marriage on basis of fraud must not have intercourse with their spouse once they discover of the fraud. Engaging in intercourse after the discovery of the fraud will invalidate the claim for an Annulment on the basis of fraud.
• Incurable Mental Illness: one party is incurably mentally ill and has been for a period of five years or more
• Minor Spouse: the marriage was performed where at least one spouse was under the age of 18. This claim must be brought prior to the minor child reaching the age of majority.
• Mental Incapacity: one party was unable to consent to or understand the nature of marriage due to mental incapacity
• Physical Incapacity: one spouse is unable to have sexual intercourse due to physical incapacity; however, the annulment in this case will need to be requested within 5 years following the date of marriage.