When a Marriage Should Never Have Been.

Many individuals, particularly those who have been married for only a short time, wonder if they may have their marriage annulled rather than seeking divorce. Annulment is often preferred due to its distinct legal, financial, social, and religious consequences. When a marriage is annulled, a court declares that the marriage never existed in the first place. A divorce, on the other hand, merely ends a marriage and dissolves the legal status of "husband and wife" or "spouse." However, for reasons explained below, most couples in Utah are not eligible for annulment and must seek a divorce.

Eligibility

In Utah, an annulment is only available where:

• The marriage is incestuous, i.e. between close relatives (as defined by Utah Code § 30-1-1).

• One person is already married to someone else, including if that person's divorce decree was not yet final. This circumstance is commonly known as bigamy. See Utah Code § 30-1-2(1).

• One person was under 18, and that person's parent did not consent to the marriage as provided in Utah Code § 30-1-9.

• One person was below the age of consent, that is to say, they were under 14 (if the marriage was before May 3, 1999) or under 16 (if the marriage was on or after May 3, 1999). See Utah Code § 30-1-2(3).

• The marriage was between parties of the same sex. See Utah Code § 30-1-2(5).

There are additional "common law" grounds that might permit a court to annul a marriage, such as fraud, misrepresentation, or refusal to consummate the marriage. However, establishing the facts necessary to grant an annulment on these grounds can be a difficult and complicated process. In Utah, the fraud perpetrated must be such that it directly affects the marriage relationship (such as concealing a felony criminal record) and it must be so important that had the deceived party known of the fraud, they would not have consented to the marriage in the first place. From Haacke v. Glenn, 814 P.2d 1157 (Utah Ct. App. 1991).

Effect of Annulment

Annulment has legal consequences that should be discussed with an attorney (for example, an annulment may affect the ability to claim a spousal privilege to prevent certain testimony in criminal proceedings). Even if a marriage is annulled, Utah courts are still empowered to make binding orders regarding the parties’ property, debts, and children, including child support and alimony. See Utah Code § 3-1-17.2.

We strongly recommend that anyone considering an annulment seek the advice of competent legal counsel to determine if an annulment is available and assist with the process. The last time we checked, the Utah State Court Self-Help Center offers very limited information on annulment proceedings and no self-help forms.

If you are considering hiring an attorney to assist with an annulment or divorce, please contact us.