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Divorce vs. Annulment: Does a declaration of invalidity apply to your marriage?

In Kentucky, a declaration of invalidity, otherwise known as an annulment, is only permitted in very specific instances. And, due to the strict requirements necessary to apply for an annulment, a divorce, or dissolution of marriage, is more often the correct approach. However, if you are one of the few individuals seeking an annulment, here is what you need to know.

What are the Requirements for Apply for an Annulment?

In order to successfully receive a decree from the court of a declaration of invalidity to your marriage, you must prove that:

  1. One party lacked capacity to consent to the marriage at the time the marriage was solemnized because of mental incapacity, deformity, or influence of alcohol, drugs, or other incapacitating substance; or
  2. One party was induced to enter into a marriage by force or duress, or fraud involving the essentials of marriage;
  3. One party lacked physical capacity to consummate the marriage and the other party did not at the time of the marriage was solemnized know of the incapacity; or
  4. The marriage is prohibited.

Under KRS 403.120, if one party lacked capacity (as described above in #1, #2, or #3), an annulment must be applied for no later than 90 days after the party seeking the annulment obtained knowledge of the described condition. If the parties find that the marriage is prohibited, then either party can seek an annulment no later than one year after the petitioner obtained knowledge that the marriage was prohibited.

Force or duress requires the petitioner to show that their consent to marry was influenced by fear from threats and that their will was overcome by these threats. If you are threatened to marry but otherwise not influenced by these threats, then force or duress would not apply.

In Kentucky, What Type of Marriages are Prohibited?

There are three categories of prohibited marriages in Kentucky. First, incestuous marriages. An incestuous marriage is a marriage to a family member closer than second cousins. This means that marriages between siblings, in-laws, nieces or nephews, or first cousins are all examples of incestuous marriages.

The second category of prohibited marriages are known as "other" marriages, which include:

  1. A marriage with a person who has been adjudge mentally disabled by a court of competent jurisdiction;
  2. A marriage with a person who has not been divorced;
  3. A marriage that is not solemnized, or contracted, in the presence of an authorized person;
  4. A marriage between two or more individuals; and
  5. A marriage with a person under the age of eighteen (except as provided in KRS 402.210).

While the second category of prohibited marriages, KRS 402.020, was updated in 2018, it is important to note that the law includes same-sex marriages as prohibited marriages. However, this is no longer the case.

The third category of prohibited marriages are marriages obtained by force or duress, or fraud.

Is a Marriage to a Person Under 18 Considered a Prohibited Marriage?

Under KRS 402.210, if either of the parties is 17 years of age, a marriage license must not be issued unless the party who is 17 years of age presents to the clerk a copy of a court order that grants the party permission to marry and removed the party's disability of minority (see KRS 402.205), AND at least 15 days have elapsed since the court order was granted.

In order for an individual, 17 years of age, to seek the courts permission to marry, that individual must petition the court with an affidavit attesting to the consent to marry signed by:

  1. The father or mother of the petitioner (if the parties are married);
  2. Both the father and the mother of the petitioner (if the parties are divorced if both share joint custody);
  3. The surviving parent; or
  4. The custodial parent

Additionally, the petition must include a statement of reasons why the petitioner desires to marry and how long the parties have known each other, evidence of the petitioner's maturity (stable housing, employment, education, etc.), a copy of any criminal records of either party, and copies of any domestic violence orders or interpersonal protective orders involving either party to be married.

After an evidentiary hearing, the court must grant the Petitioner's petition to marry unless:

  1. The age difference between the parties is more than 4 years;
  2. The intended spouse is in a position of authority (see KRS 532.045);
  3. The intended spouse has been enjoined by domestic violence or interpersonal protective order;
  4. The intended spouse has been convicted for a criminal offense against a victim who is a minor;
  5. The court finds that the minor was a victim that the intended spouse was the perpetrator of a sexual offense against;
  6. The court finds evidence that abuse, coercion, undue influence, or duress is present; or
  7. The court finds that it is not in the minor parties' best interest to grant the petition to marry.

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502-930-8685chriswise@wiselawllc.com
Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. This website provides general information, it does not constitute legal advice.
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