A. CRAIG ABRAHAMSON, LAWYER: DIVORCE, BANKRUPTCY, REAL ESTATE
406 S. Boulder Avenue, Suite 706, Tulsa, Oklahoma 74103

WHAT IS ANNULMENT AND WHEN DOES IT APPLY INSTEAD OF DIVORCE?

I frequently get asked if a client should pursue an annulment instead of a divorce “because we have only been married such a short time.” In Oklahoma, annulment has nothing to do with the duration of the marriage.
Annulment is essentially a rescission of the marriage contract. Unlike a divorce, it does not terminate a marriage. Rather, it adjudicates the marriage never existed. There are certain statutory grounds for annulment, and equitable considerations that allow for rescission of any contract can also be applied to annul the marriage contract. Some grounds for annulment are absolute. These grounds prohibited the marriage in the first place and there is nothing the parties can do to rehabilitate their marriage to make it legal. Marriages of certain people related by consanguinity are prohibited, and any marriage between them is void FROM THE OUTSET. These include marriage between ancestors and descendants of any degree, stepparents and stepchild, aunts and nephews, uncles and nieces, brothers and sisters of the half or whole blood, and first cousins. OKLA. STAT. 43, §2. [ OKLA. STAT. tit. 43, §3 prohibits same sex marriage, but this limitation after Obergefell v Hodges, 576 U.S. 644 (2015) has been held unconstitutional, Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271, 190 L. Ed. 2d 139 (2014).] Multiple or polygamous marriages are prohibited and void. OKLA. CONST. ART. 1, §2. Void marriages may be annulled at any time.
Other marriages that are otherwise valid may be voidable, meaning that if no action is taken to annul the marriage it will remain valid. Several statutes give rise to voidable marriages. OKLA. STAT. 43, §126 prohibits remarriage to third person within six months of divorce. A marriage entered during that six-month window is voidable. The annulment proceeding would have to be brought within those six months because if the parties continue to live together as a married couple after the six months, their relationship will ripen into a common law marriage. OKLA. STAT. 43, §128 prohibits marriage of mental incompetents. The annulment would have to be commenced before the incapacity ceases as cohabitation after it ceases is a complete defense. Marriages by underage parties are prohibited and if entered are voidable. OKLA. STAT. 43, §3. To be annulled the action would have to be commenced before the parties reach the age of majority because living together a s married couple after that will ripen into a common law marriage.
As is true with contracts in general that may be rescinded on equitable grounds, so may the marriage contract. Blunt v. Blunt, 1947 OK 13, 198 Okla. 138, 176 P.2d 471, 472 (1947). Of, course this would include fraud, Blunt, Id.; Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884, 885 (Okla. 1989).
Fraudulent behaviors that have been sustained as grounds for annulment include marriage motivated solely to obtain a green card for immigration purposes, misrepresentation of the paternity of a child, misrepresentation or deceit with regard to impotence, false claim of pregnancy, and concealment of illegal drug use. An additional example of fraudulent behavior which has supported an annulment decree is the “secret intention at the time of the marriage not to engage in sexual relations with … the husband.” [Footnotes omitted.]
§ 25:3. Equitable grounds for annulment, 4 Okla. Prac., Okla. Family Law § 25:3.
If a child is born during a voidable marriage, the child is a legitimate child whether the marriage is annulled or not.
In determining the legitimacy of the child we are guided by certain well-settled rules of law. A marriage entered into by persons prohibited from marrying under the provisions of 43 O.S.1941 § 3, is voidable only and not void. Puntka v. Puntka, 174 Okl. 517, 50 P.2d 1092; Hughes v. Kano, 68 Okl. 203, 173 P. 447; Hunt v. Hunt, 23 Okl. 490, 100 P. 541, 22 L.R.A.,N.S., 1202. A child born during wedlock, whether conceived before or after the marriage, is presumed to be legitimate and this presumption may be overcome only by strong and conclusive evidence. 10 O.S.1941 §§ 1, 3; Davis v. Davis, 169 Okl. 133, 36 P.2d 471. And the subsequent annulment of a marriage has no effect on the legitimacy of a child of the marriage theretofore begotten. 12 O.S.1941 § 1283.
Stone v. Stone, 1944 OK 28, 193 Okla. 458, 145 P.2d 212, 214.
The process and procedure for an action for annulment will be the same as in any action to rescind a contract.

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