Annulment is a legal procedure within secular and religious legal systems for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place. In legal terminology, an annulment makes a void marriage or a voidable marriage null.John L. Esposito (2002), Women in Muslim Family Law, Syracuse University Press, , pp. 33–34
Void vs voidable marriage
A difference exists between a void marriage and a voidable marriage.
A void marriage is a marriage that was not legally valid under the laws of the jurisdiction where the marriage occurred, and is void ab initio. Although the marriage is void as a matter of law, in some jurisdictions an annulment is required to establish that the marriage is void, or may be sought in order to obtain formal documentation that the marriage was voided. Under the laws of most nations, children born during a void marriage are considered legitimate. Depending upon the jurisdiction, reasons for why a marriage may be legally void may include consanguinity (incestual marriage), bigamy, group marriage, or child marriage.
A voidable marriage is a marriage that can be canceled at the option of one of the parties. The marriage is valid but may be annulled if contested in court by one of the parties. The petition to void the marriage must be brought by one of the parties to the marriage, and a voidable marriage thus cannot be annulled after the death of one of the parties. A marriage may be voidable for a variety of reasons, depending on the jurisdiction. Common reasons for allowing a party to void a marriage include entry into the marriage as a result of threat or coercion. Some jurisdictions distinguish between the legal age of majority and the legal age of marriage; in such cases, it is usually customary that the marriage may proceed with parental or guardian consent, and the marital parties may ratify or void the marriage upon reaching the age of majority. These are also considered voidable marriages.
The principal difference between a void and voidable marriage is that, as a void marriage is invalid from the beginning, no legal action is required to set the marriage aside. A marriage may be challenged as void by a third party, for example, in probate proceedings in which a party to the void marriage claims inheritance rights as a spouse. In contrast, a voidable marriage may be ended only through the judgment of a court, and may be voided only upon the petition of one of the parties to the marriage or, if a party is under a legal disability, by a third-party representative such as a parent or legal guardian.
The legal distinction between void and voidable marriages can be significant in relation to forced marriage. In a jurisdiction that classifies forced marriages as void, the state can cancel the marriage even against the will of the spouses. In contrast, if the law provides that a forced marriage is voidable, then, even if it can be proved that the marriage was forced, the state cannot act to end the marriage in the absence of an application by a spouse.
Christianity Catholicism
In the canon law of the Catholic Church, an annulment is properly called a "Declaration of Nullity", because according to Catholic doctrine, the marriage of baptized persons is a sacrament and, once consummated and thereby confirmed, cannot be dissolved as long as the parties to it are alive. A "Declaration of Nullity" is not the dissolution of a marriage, but merely the legal finding that a valid marriage was never contracted. This is analogous to a finding that a contract of sale is invalid, and hence, that the property for sale must be considered to have never been legally transferred into another's ownership. A divorce, on the other hand, is viewed as returning the property after a consummated sale.
The Pope may dispense from a marriage ratum sed non consummatum since, having been ratified (ratum) but not consummated (sed non-consummatum), it is not absolutely unbreakable. A valid natural marriage is not regarded as a sacrament if at least one of the parties is not baptized. In certain circumstances it can be dissolved in cases of Pauline privilege and Petrine privilege,Orlando O. Espín, James B. Nickoloff (editors), An Introductory Dictionary of Theology and Religious Studies (Liturgical Press 2007 ), p. 1036 but only for the sake of the higher good of the spiritual welfare of one of the parties.
Although an annulment is thus a declaration that "the marriage never existed", the Church recognizes that the relationship was a putative marriage, which gives rise to "natural obligations". In canon law, children conceived or born of either a valid or a putative marriage are considered legitimate, and illegitimate children are legitimized by a putative marriage of their parents, as by a valid marriage.
Certain conditions are necessary for the marriage contract to be valid in canon law. Lack of any of these conditions makes a marriage invalid and constitutes legal grounds for a declaration of nullity. Accordingly, apart from the question of diriment impediments dealt with below, there is a fourfold classification of contractual defects: defect of form, defect of contract, defect of willingness, defect of capacity. For annulment, proof is required of the existence of one of these defects, since canon law presumes all marriages are valid until proven otherwise.
Canon law stipulates canonical impediments to marriage. A diriment impediment prevents a marriage from being validly contracted at all and renders the union a putative marriage, while a prohibitory impediment renders a marriage valid but not licit. The union resulting is called a putative marriage. An invalid marriage may be subsequently convalidated, either by simple convalidation (renewal of consent that replaces invalid consent) or by sanatio in radice ("healing in the root", the retroactive dispensation from a diriment impediment). Some impediments may be dispensed with, while those de jure divino (of divine law) may not be dispensed with.
In some countries, such as Italy, in which Catholic Church marriages are automatically transcribed to the civil records, a Church declaration of nullity may be granted the exequatur and treated as the equivalent of a civil divorce.
Independent Catholicism Annulments are granted by certain Independent Catholic denominations, such as the Evangelical Catholic Church.
Lutheranism In the Lutheran Churches, "formal separation, whether established legally or merely agreed upon by the partners, is a legitimate action", in certain cases done temporarily for the purpose of devoting oneself to prayer, as described in . When formal separation does occur, it should be done with mutual consent, "carefully, cautiously, with ongoing appraisals of the situation, and renewed resolve to deal with issues in anticipation of reunion." The Lutheran Churches recognize civil annulment in cases where a marriage took place, but was invalid (e.g., a second marriage is annulled in the case of an individual who is involved in bigamy).
Anglicanism The Church of England, the mother church of the worldwide Anglican Communion, historically had the right to grant annulments, while divorces were "only available through an Act of Parliament." Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.
Certain Continuing Anglican denominations, such as the Anglican Catholic Church, offer annulments, which are granted by the bishop.
Methodism Methodist Theology Today, edited by Clive Marsh, states that:
Islam Faskh means "to annul" in Islam. It is a Sharia-granted procedure to judicially rescind a marriage.
A man does not need grounds to divorce his wife in Islam. To divorce, he can simply invoke Talaq and part with the dower he gave her before marriage; alternatively, he can invoke the Lian doctrine in case of adultery, either by bringing four witnesses who saw the wife committing adultery or by self-testifying and swearing by Allah four times. Sharia law then requires the court to grant the divorce requested by the man. Talaq is controversial, though it is a widely held belief, the Qu'ran insists counseling between two parties is necessary first before considering divorce when there is dissention/contention between spouses (Qu'ran ). The marriage contract clauses agreed upon must be honored when divorce is invoked.
Also, Sharia does grant a Muslim woman simple ways to end her marital relationship and without declaring the reason. Faskh or (kholo) (annulment) doctrine specifies certain situations when a Sharia court can grant her request and annul the marriage.
Grounds for Faskh are:Lynn Welchman (2000), Beyond the Code: Muslim Family and the Shari'a Judiciary in the Palestinian West Bank, Springer, , pp. 311–318 (a) irregular marriage (fasid),For example, a marriage when the Muslim woman was observing Iddah or Ihram (b) forbidden marriage (batil),For example, a married couple that is biologically related father-daughter, mother-son, sister-brother. ; Consanguineous marriages are very common in Islamic world – Consanguineous marriages Brecia Young, Santa Fe Institute, United States (2006) (c) the marriage was contracted by non-Muslim husband who adopted Islam after marriage,Quran forbids marriage of Muslim woman to a Christian, Jew, Hindu, Buddhist, Atheist or other non-Muslim man, (d) the husband or wife became an apostate after marriage, (e) husband is unable to consummate the marriage. In each of these cases, the wife must provide four independent witnesses acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.J Rehman (2007), The sharia, Islamic family laws and international human rights law: Examining the theory and practice of polygamy and talaq, International Journal of Law, Policy and the Family, 21(1): 108–127
In Sunni Maliki school of jurisprudence (fiqh), cruelty, disease, life-threatening ailment and desertion are additional Sharia approved grounds for the wife or the husband to seek annulment of the marriage. In these cases too, the wife must provide two male witnesses or one male and two female witnesses or in some cases four witnesses, acceptable to the Qadi (religious judge), who has the discretion to declare the evidence unacceptable.
In certain circumstances, an unrelated Muslim can petition a Qadi to void (faskh) the marriage of a Muslim couple who may not want the marriage to end. For example, in case the third party detects apostasy from Islam by either husband or wife (through blasphemy, failure to respect Sharia, or conversion of husband or wife or both from Islam to Christianity, etc.). In cases of apostasy, in addition to annulment of the marriage, the apostate may face additional penalties such as death sentence, imprisonment and civil penalties unless they repent and return to Islam.Peters & De Vries (1976), Apostasy in Islam, Die Welt des Islams, Vol. 17, Issue 1/4, pp 1–25
Civil law Australia Since 1975, Australian law provides only for void marriages. Before 1975, there were both void and voidable marriages. Today, under the Family Law Act 1975 (Cth.) a decree of nullity can only be made if a marriage is void.Dickey, A. (2007) Family Law (5th Ed)
A marriage is void if: one or both of the parties were already married at the time (i.e. bigamy) the parties are in a prohibited relationship (i.e. closely related such as siblings) the parties did not comply with the marriage laws in the jurisdiction where they were married (note that although a marriage contracted abroad is in general considered valid in Australia, in certain cases, such as when there are serious contradictions with the marriage laws of Australia, the marriage is void)