Along with divorce and separation, annulment is one of the reasons for ending a marriage. Specifically, annulment implies the invalidity of the marriage when it does not meet the legal requirements.
How is Marriage Annulled? The Annulment Action
In Spain, a marriage does not become automatically null. To have it judicially declared null, the eligible party must petition the judge through an annulment action. Additionally, this action can only be exercised in certain cases.
What are the Causes for Declaring Marriage Null? Causes of Annulment
The annulment action of marriage can only be exercised under certain causes. Specifically, these causes relate to the failure to meet the legally required conditions for marriage. Given that marriage includes three significant requirements—capacity, consent, and form—the causes of nullity are connected to these. Thus, we can categorize the causes of nullity into three groups:
- Deficiencies in capacity (Art. 73.2 of the Civil Code)
- Vices or absence of consent (Art. 73.1, 4, and 5 of the Civil Code)
- Form defects (Art. 78, 73.3, and 53 of the Civil Code)
As a result, marriage may be declared null under the following circumstances:
- Age: Marriage between spouses or a spouse who is an unemancipated minor.
- Previous marriage bond: When there exists a previous marriage.
- Crime: Marriage between a convicted person for the deliberate death of the spouse or partner.
- Consanguinity: Relatives in a direct line of consanguinity or adoption (children, grandchildren, parents, siblings, etc.) cannot marry.
- Disability of one spouse: In the case of one spouse’s incapacity to enter into marriage, it doesn’t always lead to the possibility of declaring the marriage null. It aims to validate the marriage by providing technical means and assistance for the disabled spouse to provide matrimonial consent and for this to be received. Exceptionally, a medical opinion will be requested if any health condition prevents giving consent.
- Lack of consent: When the marriage is entered into without the consent of one of the parties at the time of the celebration.
- Error about the other spouse’s identity or qualities: The qualities must be pre-existing or contemporary to the marriage’s celebration. Subsequent qualities are not relevant. These must be essential and decisive qualities for which the marriage was celebrated. Additionally, they should be intrinsic qualities of the spouse, such as drug addiction, alcoholism, mental illness, homosexuality, etc.
- Coercion or serious fear: When marriage is entered into due to threats or violence against one of the spouses.
- Apparent marriage: When marriage between spouses only exists to achieve a certain effect, without assuming the marital status between the spouses. An example is a marriage contracted between two people solely to obtain Spanish nationality for one of them.
- Form defect: The general rule is that a form defect does not make the marriage null when the spouses were unaware of this error. However, a marriage celebrated without the intervention of authority or witnesses will be null. But, as an exception to the above, the authority’s incompetence will not affect the marriage’s validity if there’s public exercise of functions and good faith in one of the contracting parties, even if the authority was incompetent.
Who Can Petition for Marriage Annulment to the Judge? Active Legitimacy of the Annulment Action
When one of the mentioned causes occurs, the annulment action can be exercised for the judge to declare the marriage null. The legitimacy to request nullity is much broader than in separation or divorce cases: any person with a legitimate interest can exercise the annulment action: spouses, the Public Prosecutor’s Office, or another person with a legitimate interest (Art. 74 of the Civil Code). There are two special rules to this broad legitimacy:
- In the case of nullity due to the minority of one spouse: only the parents, the minor’s guardians, or the Public Prosecutor’s Office are entitled to request the marriage’s nullity (Art. 75 of the Civil Code).
- In the case of nullity due to a consent defect: only the spouse who suffered the defect can request nullity (Art. 76 of the Civil Code).
Within what timeframe can marriage be declared null?
The annulment action is a necessary action. This means it does not have to be exercised within a specific period. It may even be exercised after death, as we have seen that legitimacy belongs to more people than just the spouse.
What are the effects of marriage nullity?
As a general rule, when the judge decides that the marriage should be declared null, this results in the disappearance of all effects produced from the moment of its celebration.
However, the legislator has qualified such a drastic consequence through the figure of the ‘putative marriage’ established in Article 79 of the Civil Code. This means that despite the nullity of the marriage, the effects already produced are maintained concerning the innocent spouse and the children:
- Example concerning the innocent spouse: the economic regime produced, compensatory pension in case of previous divorce, etc.
- Example concerning the children: the nullity declaration does not make the children born within the invalid marriage illegitimate.
Additionally, specific effects, contrary to the effects of divorce and separation, derive from marriage nullity. The most important effect is the following:
- Compensation for the innocent spouse: The nullity judgment does not create the obligation to pay compensatory alimony as in the case of divorce, but it does create compensation for the innocent party (Art.
Conclusion
A marriage can be declared invalid by the judge in case that the established causes can be given by the law. When a marriage is declared invalid, the marriage goes back to a similar situation to the first one. Meaning that the effects disappear like the marriage never happened. However, the effects produced with respect to the bona fide spouse and children remain. In addition, the bona fide spouse will be entitled to compensation.