After a couple enters into a marriage, it is presumed that they would live together and would consummate their wedding, or engage in sexual intercourse. But contrary to popular belief, if a married couple does not consummate their marriage in New York, it does not automatically qualify for an annulment or voiding of the state of the marriage.
A marital partner may only seek an annulment based on specific criteria. In the case of consummating a marriage, it is only necessary grounds for annulment if one party has a physical incapacity that prevents them from doing so, and it was discovered after the marriage.
If you have questions about sensitive marital topics like annulment or divorce, you don’t have to find the answers alone. A compassionate New York family law attorney can bring clarity to your situation and help you build a forward-looking strategy that aligns with your personal goals. We can help you explore your options, whether that involves facilitating a peaceful outcome through a cooperative process like separation mediation or providing clear guidance on your rights and obligations in an annulment proceeding. At The Law Office of Ryan Besinque, we may be able to assist you in finding the most appropriate resolution for you and your family. To schedule a supportive, free consultation, please contact us at (929) 251-4477 or email us at ryan@besinquelaw.com.
Am I Entitled to an Annulment Under NY Law if My Marriage Has Not Reached Consummation?
In New York, you are not automatically entitled to an annulment simply because your marriage has not been consummated. Under New York Domestic Relations Law § 140(d), an annulment related to non-consummation is only possible on the ground of “physical incapacity.” To be granted an annulment for this reason, you must prove two critical points to the court:
- Incurable Physical Incapacity: One spouse must have a physical condition that makes them unable to engage in sexual intercourse.
- Lack of Prior Knowledge: The physical incapacity was not known to the other spouse at the time of the marriage.
This means the reason for non-consummation cannot be a mutual decision, a change of heart, or emotional reluctance. Furthermore, there is a time limit. An action to annul a marriage on the ground of physical incapacity must be started before five years have passed since the date of the marriage.
What Does the Law Consider As Annulment? Is It Necessary To Consummate Marriage?
An annulment is a legal proceeding where a court declares a marriage void from the beginning, as if it were never legally valid. This is different from a divorce, which legally ends a valid marriage. A marriage can be annulled if specific legal grounds are met, even if the couple went through a marriage ceremony.
There are five reasons that may cause a marriage to be annulled in New York.
- A party was under the age of legal consent: In New York, anyone under the age of 18 is not legally able to marry. An action to annul a marriage on these grounds can be brought by the underage spouse, their parent, or their legal guardian.
- Lack of understanding to consent to the marriage: If either party was mentally incapable of understanding the nature, duties, and consequences of the marriage contract when it was made, the court may annul the marriage.
- Incurable mental illness for five years or more: If one spouse has suffered from an incurable mental illness for a period of five years or more since the marriage date, the other spouse may seek an annulment.
- Consent for the marriage was obtained by force, duress, or fraud: If one party was physically forced into the marriage, pressured into marriage by the fraud of the other marital partner, or had a wedding to obtain immigration status, the marriage can be annulled. An action based on fraud generally must be brought within three years of its discovery.
- Incurable physical incapacity to consummate the marriage: When one of the parties is physically incapable of sexual intercourse, the condition is incurable, and the other party was unaware of it at the time of the marriage, the marriage may be annulled. This action must be brought within five years of the marriage date.
| Ground for Annulment | Description |
|---|---|
| Underage Marriage | One party was under 18 at the time of marriage; action can be brought by the minor, parent, or guardian. |
| Lack of Mental Understanding | A spouse was mentally incapable of understanding the marriage contract at the time of the ceremony. |
| Incurable Mental Illness | One spouse has suffered from an incurable mental illness for five years or more since the marriage. |
| Force, Duress, or Fraud | Marriage consent was obtained through coercion, deceit, or fraud; must be filed within three years of discovery. |
| Incurable Physical Incapacity | A party is physically unable to consummate the marriage, the condition is incurable, and was unknown at the time of marriage; must be filed within five years. |
What Does Consummating a Marriage Mean?
In the context of a marriage, the term “consummation” refers to the act of completing the marital union through sexual intercourse for the first time after the wedding. While consummation is not a legal requirement for a marriage to be valid, many couples still consider it an important personal milestone. It is often seen as a physical expression of love and commitment between two individuals and, for some, the hope of starting a family. Although it is a private act, whether it occurred can have legal consequences in the specific context of an annulment proceeding based on physical incapacity.
How to Prove Consummation of Marriage
Proving the consummation of marriage can be an essential aspect of family law in specific legal scenarios, such as annulment cases. In New York, consummation refers to the act of completing the marriage through sexual relations after the wedding ceremony. To prove consummation, the testimony of the spouses involved is often considered the primary evidence. They may need to provide sworn statements or affidavits confirming that they have engaged in sexual relations following the marriage.
In some cases, other forms of evidence may be necessary, particularly if there are disputes. Witness testimony from those aware of the couple’s cohabitation and behavior can also support the claim. Medical records might be required if there’s a need to prove the capability of one or both spouses to engage in sexual intercourse.
Legal professionals emphasize that the burden of proof lies with the party asserting non-consummation, usually in annulment proceedings. New York courts take a pragmatic approach, focusing on the evidence’s reliability and credibility. It’s important to note that the issue of consummation is generally private and sensitive, so the courts handle such matters with discretion. Consulting with an experienced family law attorney can help navigate these delicate situations effectively.
Impotence vs. Infertility: Why Only Physical Inability Matters for Annulment
When a marriage is not consummated, it can be a source of significant emotional distress. In New York, the law acknowledges this by providing a path to annulment based on one spouse’s physical incapacity to engage in sexual relations. It is important to approach this topic with clarity and sensitivity, as it touches upon deeply personal aspects of a relationship.
The legal system in New York draws a clear line between impotence and infertility. An annulment may be granted for impotence, which is the physical inability of a spouse to have sexual intercourse. This is considered a foundational aspect of the marital contract. In contrast, infertility, the inability to conceive a child, is not a ground for annulment. The law focuses solely on the physical act of consummation, not the ability to procreate.
To obtain an annulment on the grounds of impotence, medical proof is typically necessary. This usually involves a physician’s attestation that one spouse has an incurable physical condition preventing them from consummating the marriage. The spouse seeking the annulment must not have been aware of this condition at the time of the marriage.
Navigating the legal standards for what constitutes ‘incurable’ and proving a lack of knowledge at the time of marriage can be challenging. Therefore, consulting with an experienced family law attorney is a critical step to protect your rights and determine the best path forward.
Do You Need A Lawyer To File The Paperwork For An Annulment?
Unlike a divorce that ends a valid marriage, a legal annulment declares that the marriage was invalid from the very beginning. For this reason, these are complicated legal matters. A person who annuls their marriage and later remarries is legally considered to be entering their first marriage. In contrast, a divorcée who remarries is entering their second marriage.
Although an individual can file for an annulment without a lawyer, it is highly advisable to contact a family law attorney who can assist in handling the official procedures and paperwork for you, making sure your rights are secure.
How Can You Prove Grounds for an Annulment?
In New York, the person seeking an annulment has the “burden of proof,” meaning they are responsible for presenting sufficient evidence to the court to support their claim. The type of proof required depends entirely on the specific grounds for the annulment.
Proving your case often involves documentation and credible testimony. For example:
- Fraud: To annul a marriage for fraud, you must prove that your spouse intentionally misrepresented something essential to the marriage, which you relied upon when giving your consent to marry. Common examples include lies about the desire to have children, financial status, or addiction issues. Proof often consists of your testimony, witness testimony, and any supporting documents.
- Physical Incapacity: This requires medical records and expert testimony to prove that one spouse has an incurable condition preventing consummation, which was unknown to the other spouse at the time of the marriage.
- Force or Duress: This requires demonstrating that you were coerced into the marriage against your will through threats or violence. Your testimony about the circumstances is the primary evidence.
Some marriages, known as “void” marriages, are illegal from the start. The most common example is an incestuous marriage. In New York, marriages are strictly prohibited between an ancestor and a descendant, a brother and a sister, or an uncle and a niece or an aunt and a nephew. While these marriages are automatically void, an annulment action is often necessary to obtain a court order for legal clarity.
Finally, you must act within New York’s strict time limits, or statutes of limitations. For example, an action based on fraud must be filed within three years of its discovery. For physical incapacity, the time limit is five years from the date of the marriage. If you fail to file in time, the court will likely deny the annulment, leaving divorce as your only remaining option.
How Does an Annulment Affect the Legal Rights and Responsibilities of the Partners?
Once a marriage is annulled, it is considered void. While all marital records remain, the couple may consider themselves as never having had a marriage.
Although an annulment voids the wedding, it does not affect the legitimacy of the children or the couple’s responsibility to them. When there are minor children involved, child custody and support are factors that still must be dealt with in an annulment. The court can order child support, custody, and visitation, similar to a divorce.
Likewise, if assets and property were acquired by the couple during the marriage, the equitable distribution would still be a factor. The court may intervene in the distribution of marital property and may also order spousal maintenance in certain circumstances.
Getting the Help of an Experienced Divorce Lawyer for a Possible Annulment
New York family law can be complicated. If you are considering an annulment and concerned about whether the consummation of your marriage is a factor, about your grounds, rights, and your responsibilities, it is essential to get the skilled guidance of a New York family law attorney. At The Law Office of Ryan Besinque, we have the experience it takes to guide you toward the best resolution for you and your family. Contact us at (929) 251-4477 or email us at ryan@besinquelaw.com to schedule a free consultation.
