Is Annulment a Better Option than Divorce?

Occasionally someone will ask me about the possibility of getting an annulment instead of a divorce. This is an area where the “word on the street” differs greatly from the actual law. For example, it is common for people to have heard that an annulment is granted if the parties have been married for only a short time. Also, there is a common perception that annulment will be faster and/or easier to get than a divorce. In Kansas, however, annulments are not based on the duration of the marriage and they are not necessarily easier or faster. In fact, because you must prove you meet the required grounds for an annulment, it may be harder to get than a divorce in some cases.

Kansas allows for a marriage to be annulled in two circumstances – if the marriage was void (it violated some legal prohibition) or if the marriage is voidable (some material fact was unknown to one or both parties which, if known, would have led that party to decide against the marriage). If the marriage is not void or voidable, the parties cannot get an annulment not matter how short the marriage.

A marriage is void if there is a legal prohibition against the marriage at the location of the marriage itself. By way of example, it is presently illegal for homosexual couples to get married in Kansas. If a gay couple were to be married here the marriage would be void and the court would grant an annulment. However, if the couple were married in a jurisdiction where gay marriage was legal, the marriage would not be void and Kansas could not grant an annulment on that basis. Other examples of void marriages include close relatives (siblings, cousins, etc.); under age parties or one of the parties being married to someone else (bigamy).

A marriage is voidable if one or both parties did not know a material fact that would have led them to decide against being married. If the husband lies about his financial status and ability to provide for his wife when in fact he is a deadbeat he wants to swindle her family’s money that may be an example of a marriage induced by fraud. Another example is if the wife, prior to the marriage, claims she is pregnant with the husband’s child knowing that either she is not pregnant or the child belongs to someone else that is also induced by fraud. If the court finds the marriage was induced by fraud it must grant the annulment. On the other hand, if there is not a fraud by a only a mistake in fact, then the court may grant the annulment but is not required to under Kansas law. An example of this situation is if one party has a serious, undiagnosed mental illness which only became apparent after the marriage. Alternatively, if the wife-to-be was pregnant at the time of the marriage and both parties believe it was husband’s child, but it turned out to be someone else’s, that would be a mistake of fact and not fraud.

The burden to prove the grounds are met is on the party seeking annulment. This is often a higher burden than what is required to get a divorce. As a result it is incorrect to think of annulment as an easier way to dissolve the marriage- it is not available in most cases and it can be hard to prove in the cases where it does apply. If you have questions about whether you are eligible for an annulment, you should consult an experienced family law attorney in your area to discuss your case.

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