Ask Judge Smith
Annulments and divorces differ on the validity of the marriage
Q. Judge Smith, what is the difference between an annulment and a divorce? Kaitlyn
A. Since Adam and Eve, people have paired off for love, companionship, and family. Over the ages, society has defined what it means to be married and how marriages end. Suppose two people go through a traditional marriage ceremony and exchange vows. Most wedding ceremonies instruct the couples that their unions are “for better, for worse, for richer, for poorer, in sickness, in health,” until death parts them.
Marriage is a contract between two people. Both parties exchange promises of enduring love and support. Often, at the ceremony’s end, the wedding official announces, “What God joins together, let no one put asunder.”
Yet, life does not always work out that way. Civil law honors the institution of marriage but recognizes that not all marriages last. An annulment sets aside an invalid marriage, and a divorce ends a valid one.
Let’s consider the most infamous annulment in history. King Henry VIII wanted another son, and he didn’t think his wife, Catherine of Aragon, could bear a spare-heir. The Catholic Church disapproved of divorce, so Henry VIII asked it for an annulment. When Rome refused, he founded the Anglican Church and granted himself an annulment. To quote Mel Brooks, “it’s good to be king!”
Now, let’s contrast actions for annulment and divorce under Florida law. Generally, annulment actions allege either a lack of capacity or a lack of consent to wed.
Annulment
Common grounds contesting capacity to wed are bigamy, incest, and being under the age of consent. You can’t marry someone who is already married. The law doesn’t allow close relatives to wed. And depending on the state, if you are too young to buy a car, you may be too young to marry.
Common grounds contesting a lack of consent to wed are coercion, sham, and mental incapacity. Coercion deprives the innocent party of free will. Sham marriages happen when the parties do not intend to be bound by their vows or accept their rights and duties as spouses.
Moreover, parties can’t marry unless both understand the marriage contract and obligations it creates. If you were so drunk during the wedding ceremony that you didn’t understand the consequences of saying “I do,” you might be a candidate for an annulment.
An affirmative defense to an annulment is consent to the marriage. Usually, one cannot annul a marriage after accepting its benefits. For example, claiming you were “too drunk to marry” might not work if you live with your spouse after sobering up. Failing to consummate the marriage alone is not grounds for an annulment.
Divorce
In contrast, a divorce ends a valid marriage when one spouse claims and provides proof of irreconcilable differences.
The Honorable J. Layne Smith is a Circuit Judge and the author of “Oswald on Trial–Making Sense of the Evidence,” and “Civics, Law, and Justice–How We Became U.S.” Send your questions to askjudgesmith@gmail.com
