Creation, Nullity, and Annulment

Question 0

Are Blood Tests required for marriage license in NY?

Answer 0

No

Question 1

Marriage License Requirements

Answer 1

obtained by a town or city clerk [NY Dom Rel Law 14] and
delivered to officiant
within 60 days
but before the ceremony is performed.

Failure will not invalidate marriage but
person subject to criminal penalties for marrying without a license.

Question 2

Age Limitations In NY

Answer 2

1. 18+: Must show proof of age
2. 16 and 18: Consent of parent or guardian
3. Under 16: Court approval
4. Under 14: Prohibited

Question 3

Limitation on Solemnizing marriage after obtaining license

Answer 3

not within 24 hours of obtaining a license

except in case of imminent death.

Question 4

Who may solemnize a ceremonial marriage

Answer 4

An Authorized party:
Clergyman or minister
Leader of a chapter of the Ethical Cultural Society
Mayor
Magistrate
County Clerk
City Clerk
Judge or justice
[NY Dom Rel Law S 11]

Question 5

Contractual Marriage Requirements

Answer 5

(1) signed by parties and at least 2 witnesses in NY State;
(2) state of residence of parties and witnesses with date and place of marriage;
(3) acknowledged before NY Judge
witnessed in manner required for acknowledgement of a conveyance of real estate to be recorded [NY Dom Rel Law 11]
(4) NY Recognizes contractual marriage when statutory requirements are satisfied [NYDRL 11(4)]

Question 6

Common Law Marriage Defined - Three C’s

Answer 6

couple live together
as married couple
prescribed statutory period
without legal formality marriage.

Requires 3 C’s - Consent, Cohabitation, Community reputation

Question 7

Common Law Marriage in NY

Answer 7

invalid if contracted in NY.

recognized if validly contracted under the laws of another state.

Question 8

Burden of Proof and Standard of Proof for Common Law Marriage

Answer 8

BoP on person asserting existence of CL marriage.

Clear and Convincing evidence required

Question 9

NonMarital Express Contracts between Cohabiting Individuals

Answer 9

NY will recognize contracts to support each other or share property provided there is consideration OTHER than the furnishing of sexual services.

Implied contracts between cohabiting parties will not be enforced because of the high risk of fraud [Morone v Morone]

Question 10

4 Impediments to a valid marriage

Answer 10

1. Age
2. Mental or Physical Incapacity
3. Consanguinity
4. Bigamy

Question 11

A marriage is void ab initio (from the beginning) under what circumstances. (2)

Answer 11

1. incestuous relationship - parent-child; brother or half brother-sister; uncle-niece
2. Bigamous

No judicial order is needed when a marriage is void.
Parties may abandon the marriage.
May seek a declaration of nullity on either of the above grounds.

Question 12

Grounds for a Petition for Annulment seeking a judicial determination that a voidable marriage is void. (5)

Answer 12

Age
Mental Incapacity or Illness
Physical Incapacity
Consent by force, duress, threat of bodily harm and injury to property
Fraud

Question 13

Voidable Marriage on the basis of Mental Incapacity

Answer 13

relative with interest can bring action if party is incapable of consenting to marriage for lack of understanding.

can maintain action if party regains mental soundness
BUT not if he continues to co-habitate

Question 14

Limitation on Consent By force ground for Annullment

Answer 14

parties cohabited before commencing the action

consent by force is not be available as a ground for annulment.

Question 15

Fraud as grounds for an annulment of a marriage

Answer 15

action within a reasonable time after marriage if
failure to disclose or misrepresentation
GOES TO THE ESSENCE OF THE MARRIAGE

Question 16

Examples of Fraud that are grounds for annulment

Answer 16

Addiction drugs
health or physical condition
mental Condition
concealed pregnancy
A prior marital status
Intent not to have children

Question 17

Right to Jury Trial In Annulment Action

Answer 17

There is a right to a jury trial on all issues of fact EXCEPT when the action is grounded on physical incapacity

Question 18

Physical Incapacity as grounds for annulment of a marriage

Answer 18

W/I 5 years of commencement
party is CONTINUOUSLY and INCURABLY physically incapacitated
includes impotence, VD, emotional disturbance etc.

absolute right to have marriage annulled a party is incurably mentally ill for period of five years
illness commenced after marriage performed [NYDRL 140(f)]

Question 19

Legal Consequences of Annulment

Answer 19

Void from time nullity is declared by court of competent jurisdiction.

Children born while parents are married are legitimate
even if marriage is later declared void.

TiE are converted to TiC’s

Any disposition or appointment of property made by will is revoked and passes as if the former spouse predeceased the testator

Question 20

Exception to the time restriction for obtaining a license and solemnizing the ceremony.

Answer 20

Except in the case of imminent death or irreparable harm, marriages may not be solemnized within 24 hours of obtaining a license.

Question 21

Validity of Foreign Marriages

Answer 21

Marriage that is valid according to the laws of the state in which it is contracted will be recognized in every other jurisdiction unless the marriage is deemed to violate the public policy of the forum state [Fernandez v Fernandez]

Even in states that do not recognize common law marriage will recognize the common law marriage if the parties satisfied the common law marriage requirements of another state

Question 22

When a marriage validly celebrated elsewhere will not be recognized in NY State

Answer 22

1. The marriage violates a prohibitory rule of NY as the domicile of one of the parties, it will be held void if the parties immediately return to and become domiciled in NY. (Ie., nonage, bigamy, incest).
2. A polygamous or incestuous marriage, even if valid in a country or jurisdiction where the marriage was contracted, will generally be deemed invalid as against public policy.

Question 23

Difference between Void Marriages and Voidable Marriages

Answer 23

No judicial order is needed when a marriage is void.

When a marriage is only voidable, a petition for annulment must be brought seeking a judicial determination that the marriage be declared void. Such grounds include Age, Physical incapacity, Mental Incapacity, Consent by force or duress, Fraud

Question 24

Plaintiffs burden in Annulment action

Answer 24

P has the burden of proving there has been no cohabitation between the parties such as would bar a judgement
EXCEPT
where mental retardation, illness, or physical incapacity has been alleged. Here P must only prove the incapacity continues.

Question 25

SoL for Annulment

Answer 25

Except for Fraud (3 year limit) and Physical Incapacity (5 year) no other SoL has been established for any ground.

By default the remainder is 6 years.

Question 26

Legal Consequences of Annulment

Answer 26

Annulled marriages are void from the time their nullity is declared by a court of competent jurisdiction
EXCEPT
Bigamous and incestuous marriages are void ab initio.

[NYDRL 7]

Question 27

Situations where courts will be especially vigilant in finding common law marriage

Answer 27

party claims cl marriage to share in estate of deceased

cohabitation in non marital relationship prior to alleged common law marriage, burden will be especially heavy one

Question 28

A marriage voidable for age will not be annulled if

Answer 28

petitioner was of age to consent when married

party cohabitates as married couple after reaching age of majority

Question 29

Examples of force or duress sufficient to gain annulment

Answer 29

threat of prosecution
bodily harm
injury to property

Question 30

Burden of proof for seeking an annulment

Answer 30

age, duress, fraud - petitioner has burden to prove no cohabitation

Mental or physical incapacity or illness - must prove incapacity continues