An annulment is a matrimonial action instituted in the New York State Supreme Court to declare a marriage null and void.  Two types of marriages may be subject to an annulment:  a void marriage, which is void at its inception and thus never legitimate, and a voidable marriage, which can be voided only by a court judgment.  A voidable marriage is void from the date of the judgment of nullity. 

The following marriages are void:  incestuous; bigamous; and marriages performed by an unauthorized person.  An incestuous marriage occurs between an ancestor and a descendant, such as a mother and son, between siblings, or between an uncle and niece or an aunt and nephew.  A bigamous marriage occurs when one spouse marries a third person despite the fact that his or her prior spouse is still alive and the marriage has not been dissolved. 

The following marriages are voidable:  when one or both spouses are under the age of consent, when one or both spouses are mentally incapable of consenting to the marriage, when one or both spouses are physically incapable of consenting to the marriage, and when one or more spouses are coerced into the marriage.

The age of consent to marriage in New York State is eighteen-years-old.  For a person under the age of eighteen-years-old to become married, written consent of both of the underage spouse’s parents is required.  For a person under the age of sixteen-years-old to marry, parental consent and a judge’s order are necessary.  No one under the age of fourteen is permitted to marry.  A person under the age of eighteen as well as a parent of the underage spouse and/or the underage spouse’s guardian may seek to have the marriage annulled.   It is in the Court’s discretion to grant an annulment due to the spouse’s age, taking into consideration all of the facts and circumstances of the marriage.  The right to seek an annulment due to being under the age of consent terminates when the spouse reaches the age of 18.

In an action to determine a marriage voidable due to want of understanding, the Court will determine if the parties were capable of fully understanding the nature of the marital relationship and its consequences.  An annulment action for want of understanding may be based upon the mental retardation or mental illness of a spouse.  An action brought due to mental illness may be brought by the mentally ill spouse when the illness has been cured, so long as he or she does not continue to cohabit with the spouse, which ratifies the marriage, i.e., makes it valid.  The spouse who is not suffering from mental illness may file to have the marriage determined voidable if:  the other spouse was mentally ill at the time of the marriage, the non-mentally ill spouse was not aware of the illness, the action was brought as soon as the non-mentally ill spouse learned of the illness and the mental illness is present when the annulment is sought.

A spouse may seek to have a marriage declared voidable when the other is unable to have sexual relations due to an incurable condition (not sterility).  An annulment action brought for this cause must be filed within five years after the marriage.

Both parties to a marriage must knowingly consent to the marriage of their own free will.  A marriage may be annulled if either party consents to the marriage due to duress, force or fraud.  An action for this cause may be brought by a spouse, a parent of a spouse or a relative of a spouse who has an interest in annulling the marriage. 

Finally, an annulment may be spouse if one spouse develops an incurable mental illness for five or more years.  The mental illness can develop after the marriage.

In our age of technological advancement, it is not that difficult to engage in electronic eavesdropping.  However, if you are involved in a divorce, you could face criminal penalties for doing so, and you will be able to use any of the information that you obtain in court.

 New York Penal Law §250.05 provides that a spouse is guilty of eavesdropping, a class E felony, when he or she unlawfully “engages in wiretapping, mechanical overhearing of a conversation or intercepting or accessing of an electronic communication”.   A party who records a spouse’s electronic communications through the use of keystroke software, automatic session logs, and copying of sent or received emails may be guilty of eavesdropping.  A spouse who possesses eavesdropping technology or equipment designed to wiretap or mechanically overhear a conversation may be guilty of a class A misdemeanor.

Civil Practice Law and Rules §4506(1) provides that any communication obtained through the use of illegal eavesdropping cannot be used as evidence in any trial, hearing or proceeding before any court, except in a civil or criminal hearing against the person alleged to have eavesdropped.