Declaration of Nullity
There are three circumstances in which a marriage simply does not take effect, and you remain legally unmarried even immediately after the wedding ceremony. Your marriage is a nullity. It never was valid and it never could have been valid. These circumstances include:
- Incest – You and your spouse are biologically related in one of the following ways:
- Descendants (e.g. parent-child; grandparent- grandchild)
- Siblings (at least one shared parent, full or half brother and sister)
- Uncle and niece or aunt and nephew
- Bigamy/polygamy – You or your spouse was legally married to another living person at the time of your marriage
- Improper solemnization – Your marriage ceremony was performed by someone not officially permitted to perform a marriage ceremony. Generally the following officials may preside over and solemnize a marriage:
- A clergy member or minister of any religion
- A senior leader of one of New York’s Societies for Ethical Culture
- A mayor of a village or city
- A county executive of a county
- A recorder, city magistrate, police justice or police magistrate of a city
- A federal or state judge sitting in New York State (a retired judge can sometimes perform marriage ceremonies as well).
In any of these three circumstances you do not need to ask for an annulment or divorce, because there is no marriage. But you may want an official record stating that the marriage is a nullity. You or your spouse can ask the court for a formal declaration that the marriage is, and always has been, a nullity. (And in the case of bigamy/polygamy another living spouse can ask for such a declaration.)
If the court issues a Declaration of Nullity then both that declaration and the void marriage remain in the records. If you and your spouse have children together, the court may also legitimize them (make them legitimate). The court will hold both parents responsible for their children. Just as in an annulment, the court can divide your property fairly between you and can order maintenance and child support. Children would also have rights to inheritances.
Legal Editor: Charlotte Lee, April 2015 (updated February 2019)
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.