When are you allowed to Divorce? - The Men's Legal Center


When are you allowed to Divorce?

In California, you can get a divorce or dissolution of marriage for irreconcilable differences or permanent legal incapacity to make decisions.

Under nullity of marriage, options are incest or bigamy. Under voidable marriage, the options are underage, prior marriage, fraud, force, and physical incapacity. In a divorce, parties do not question the validity of the marriage. An annulment or nullity of marriage indicates the party questions the marriage’s validity. A request for an annulment can be based on a void or voidable marriage.

A void marriage was never legally valid. The grounds are bigamy and incest. A void marriage because of incest is the parties involved are relatives, but first cousins are legally allowed to marry in California. By bigamy is when one party is already married or in a partnership with another.

A voidable marriage is one party commits an act as a prelude/precondition to the marriage, not sanctioned under the law. Grounds are if one or both parties were not 18 or did not have parental consent; If either party was married at the time of marriage, but for 5 years prior believed their spouse was dead or missing. Unlike a bigamous marriage, this is actual knowledge; The parties do not have the mental capacity to understand the marital obligation; Fraud which must go to the essence of the marriage. Fraud committed by one party invalidates the consent of the innocent spouse who got “conned.” That spouse has to prove his/her case by “clear and convincing” evidence. The basic rule to the marriage contract is the parties be faithful, supportive, and respectful. The implied intent of marriage is an intimate relationship, procreation, and rearing children. It is not fraud for one party to conceal character traits or financial conditions. The basis to support a nullity of marriage is narrowly construed such as a secret intent not to consummate the marriage, not live with the spouse, concealing the inability to have children or an affair. If one party is having an affair during marriage, it may be considered fraud in California. Marrying to obtain a green card; and when a party is forced into marriage.

Remember, a party has a constitutional right to divorce but not to a nullity.

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