Void and Voidable Marriages


Void and Voidable Marriages/Photo by Poppy Thomas Hill from Pexels

What is Marriage?

In California, marriage is defined by Family Code 300, which states, “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.  Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization…”

Family Code 306 then states, “Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the certificate of registry of marriage shall be returned as provided in this part. Noncompliance with this part by a nonparty to the marriage does not invalidate the marriage.

Can You Void a Marriage?

Yes.  You can void a marriage via annulment.  This is different than divorce, which dissolves the marriage.

Annulments VOID a marriage – erases it like it never happened.


A void marriage CANNOT exist. For example, you CANNOT marry your brother.  IT is not recognized by the state and you do not have to “annul” it.

Voidable marriages exist until you do something to “void” it (ie file for annulment).

Void Marriages

VOID marriages are defined by California Family Code � 2200. Incestuous marriages_ and California Family Code � 2201. Subsequent marriage contracted during life of former spouse with person other than former spouse_

A marriage through incest or bigamous is NEVER legal and thus VOID from inception. Except, in the case of bigamy, there are exceptions where: the former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage and where the former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.

Voidable Marriages

VOIDABLE marriages are those that are valid until a COURT declares it NOT. These include marriages which are defective because of:

Age: Party filing for annulment is under age 18 at time of marriage. (Must file within 4 years of turning 18)

Prior Existing Marriage: if either party is already married, but one of the exceptions to the above bigamy rule (Must file when both are alive).

Unsound Mind: Unable to understand nature of marriage. (anytime before death of either party).

Fraud: very common reason people want! But very hard to prove: the fraud has to go to the essence of the marriage (Must be filed within 4 years of discovery of fraud)

Force: Marriage by physical force. (within 4 years)

Physical Incapacity: One spouse unable to consummate the marriage. (within 4 years).

What Sort of Fraud is Required?

I most often receive calls from people who claim they were “defrauded”. Keep in mind, the fact that someone was a “frog and not a prince” is not sufficient to meet the fraud requirement. 18 Cal.App.4th 499, G013349, In re Marriage of Johnston.

In general, if you have already consummated the marriage, it will be difficult to prove you were defrauded. In this very interesting case 131 Cal.App.4th 1, A106079, In re Marraige of Meagher & Maleki, the Court held the fraud had to go to the “essence of the marriage”. This means sexual, procreative, child-rearing. I once had a case where the client came back from Thailand with a beautiful bride…went through her personal belongings, and discovered she was a “he”. The annulment was granted.

Someone lying about their wealth or status, or personal habits (they stink, don’t wash dishes, gamble a lot), would fall under the “frog not prince” and NOT qualify as sufficient fraud to invalidate the marriage. In those cases, you can still file for divorce to dissolve the marriage. But not ERASE it, like an annulment.

Have a case like this?

Family matters are extremely personal, and it is important for us to know details of your case before giving advice. Each case is different, and it is important to find an attorney you trust. To arrange an appointment, please call us at (626) 765-5767 between 8:30am – 5:00pm, Mondays to Fridays, or fill out the form below.

Schedule a Consultation