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An annulment differs from a divorce as it nullifies the marriage or legally treats the “marriage” as if it never existed (this is called a legal fiction, as the marriage did exist at one time for a period of time). While most of us have heard that you can obtain an annulment if the marriage was never consummated, this is not the case in Indiana, and annulments are very rare.¹ Annulments of marriage are necessary in some religions to have certain church rights. This blog covers the two (2) types of annulment in Indiana.

Indiana recognizes two (2) types of marriages that an individual is able to avoid without a divorce. These are void or voidable marriages. A void marriage is one that, under the law, never legally occurred, and therefore the parties are not actually married. A marriage is considered void in Indiana if:

• Either spouse was already married to someone else.
• The parties are more closely related than second cousins.²
• One of the parties was mentally incompetent at the time of the marriage.

While Indiana statute provides that no court action is required in the case of a void marriage, other than for mental incompetency,³ a court order declaring the marriage void is often required, as it is usually impossible to convince financial institutions, government agencies, and the like that a marriage is void and never existed.

A voidable marriage is one that either spouse may avoid or is voidable or have annulled. There are only two (2) reasons to have a marriage annulled in Indiana: (1) incapacity and (2) fraud.

The legal term “incapacity” means that either you or your spouse was not of legal age to marry, and did not have proper consent, or were mentally incompetent to consent to the marriage at the time that the marriage occurred. Mental incompetence can be hard to prove and requires more than just a mental illness. The incapacitated person must have been under a guardianship, previously adjudicated by a court as incompetent, or held in a mental health facility pursuant to a court order. However, if there is not a guardianship at the time of the marriage, the party seeking annulment will need to provide evidence that the mental incapacity existed at the time of the marriage and was such that the party was unable to enter into a contract, namely contract to marry.⁴

The legal term “fraud” as it pertains to the annulment of a marriage is not however simply lying about previous marriages, assets, future plans, current children, et cetera, as many “deceived” spouses would like to believe. The fraud must go to the essence of the marriage and must induce the marriage. This means that the lie has to be one that actually affects your married life and had convinced you to marry your spouse.⁵ Misrepresentations about wealth, pregnancy, character, U.S. citizenship, and criminal history have been deemed by the courts as insufficient grounds for annulment, as have promises to perform future actions, concealment of information without actual misrepresentation, and fraudulent statement or actions without the actual intent to defraud.⁶ Thus, therein lies the inherent difficulty faced by a litigant in seeking a voidable marriage.

Obtaining an annulment in Indiana requires very specific circumstances and can be quite difficult to prove; and continuing to live with your spouse or represent yourself as married may affect your ability to do so. Therefore, if you wish to have your marriage annulled, you should consult with an experienced family law attorney as soon as possible after discovering the incapacity, fraud, or reason for declaring the marriage void or voidable. This blog was written by attorneys at Ciyou & Associates, P.C. who handle domestic cases of all types throughout the State. It is an advertisement.

1.  From the earliest of Indiana cases of the Indiana Supreme Court (the only appellate court in Indiana at the start of the State), there are only a few reported appellate cases addressing annulment. While it is a statutory legal remedy, it is difficult to prevail in an annulment. Case. See, e.g., McPeek v. McCardle, 888N.E.2d 171176, 177 (Ind.2008). (McPeek v. McCardle, 888 N.E.2d 171 | Casetext Search + Citator) Nevertheless, the right factual circumstances may allow for the trial court to grant an annulment.
2.  Pursuant to Indiana Code section 31-11-8-3 a marriage is not void if: (1) the marriage was solemnized after September 1, 1977; (2) the parties to the marriage are first cousins; and (3) both of the parties were at least sixty-five (65) years of age when the marriage was solemnized. (Indiana Code § 31-11-8-3. Marriage to close relative; marriages between cousins; exceptions :: 2017 Indiana Code :: US Codes and Statutes :: US Law :: Justia)
3. Indiana Code section 31-11-8-1. (Indiana Code § 31-11-8-1. Marriages Void Without Legal Proceedings :: 2021 Indiana Code :: US Codes and Statutes :: US Law :: Justia)
4.  From the earliest of Indiana cases of the Indiana Supreme Court (the only appellate court in Indiana at the start of the State), there are only a few reported appellate cases addressing annulment. While it is a statutory legal remedy, it is difficult to prevail in an annulment. Case. See, e.g., McPeek v. McCardle, 888N.E.2d 171176, 177 (Ind.2008). (McPeek v. McCardle, 888 N.E.2d 171 | Casetext Search + Citator) Nevertheless, the right factual circumstances may allow for the trial court to grant an annulment.
5.  Pursuant to Indiana Code section 31-11-8-3 a marriage is not void if: (1) the marriage was solemnized after September 1, 1977; (2) the parties to the marriage are first cousins; and (3) both of the parties were at least sixty-five (65) years of age when the marriage was solemnized. (Indiana Code § 31-11-8-3. Marriage to close relative; marriages between cousins; exceptions :: 2017 Indiana Code :: US Codes and Statutes :: US Law :: Justia)
6. Indiana Code section 31-11-8-1. (Indiana Code § 31-11-8-1. Marriages Void Without Legal Proceedings :: 2021 Indiana Code :: US Codes and Statutes :: US Law :: Justia)