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Wednesday, February 8, 2012

What happens if your marriage turns out to be void from the beginning?

What happens if your marriage turns out to be void from the beginning?

The question may sound unusual, but it is very common in religious communities where members may ignore secular law, and go straight to their clergy for a religious wedding ceremony. I will refer to this situation as “failed ceremonies.” Another scenario occurs when one, or both, of the parties were previously married. They may have obtained a religious divorce, but not a civil divorce from a court. While still being civilly and legally married to another person, s/he enters into a religious marriage ceremony with the new spouse. This sounds like polygamy, but the attempted second marriage is considered void from inception. The second marriage is akin to attempted polygamy. I will call this situation the “void or voidable marriages.”

Failed Ceremonies

In order to legally marry in New York State, a couple must be of proper age, obtain a license to marry from a city or town, wait 24 hours and then engage in a solemnization ceremony officiated by a member of the clergy, judge, mayor or town clerk. With many religious couples, these civil formalities are ignored. Specifically, no license is obtained or the officiant is not properly qualified. Recognizing this reality, the couple’s failure to obtain a marriage license or have a proper solemnization ceremony does not necessarily prevent the recognition of their marital status under New York’s Domestic Relations Law (“DRL”). The courts have found that the DRL shall “not be construed to render void by any reason of a failure to procure a marriage license any marriage solemnized between persons of full age.” Ahmed v. Ahmed, 55 A.D.3d 516 (2d. Dep’t 2008). The parties participation in a purely religious marriage ceremony satisfied the requirements of New York’s DRL. Wherever possible, the courts endeavor to sustain the validity of a marriage. Helfond v. Helfond, 53 Misc.2d. 974, 977 (Sup. Ct. Nassau Co. 1967).

Void or Voidable Marriages

A void marriage is one that never legally existed because one of the parties was unable as a matter of law to enter into the marriage. The most common example of this is when a person is still married to their former partner on the day of the marriage ceremony. New York does not recognize the second ceremony as a legal marriage. That attempted marriage is considered “void ab initio”, which means it will be treated as invalid from the beginning. Another form of failed marriage is the “voidable” marriage. It is commonly known as an annulment. In that case, a court issued a Judgment nullifying what was at one time a lawful marriage.

If the couple splits and a divorce action is commenced, one party may attempt to argue that there is a void, voidable or void ab initio marriage, to prevent a spouse from exercising his/her financial rights (under equitable distribution). In either case, the court in New York’s Second Department has long held that property acquired during a void or voidable marriage is subject to equitable distribution. First, the party claiming the marriage is void, has a heavy burden to overcome the presumption that favors the validation and legitimization of marriage. This is especially true when the facts show that the parties completed a ceremony, lived together, held themselves out as being married, and have children of the purported marriage. In New York there is a “strong presumption favoring the validity of marriage.” In re McDonald, 276 A.D.2d. 631, 632 (2d Dep't 2000), Fisher v. Fisher, 250 N.Y. 313, 317 (1929) ("Every presumption lies in favor of the validity of a marriage."). It has long been held that “[t]he presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law.” Hynes v. McDermott, 91 N.Y. 451, 459 (1883).

Even if the marriage is determined to be void or voidable, such a decision is of no consequence with respect to the distribution of property acquired during the marriage or many other issues raised in a divorce case like custody and visitation. Attorneys have on several occasions proffered the theory that equitable distribution is not applicable to a void or voidable marriages.  The argument is wrong. The Appellate Division, Second Department has clearly put the issue to rest. The appellate court found in cases where a marriage was void at its inception because one spouse was not divorced from a prior spouse, that equitable distribution is available to both parties. Brant v. Brant, 149 A.D.2d. 646 (2d. Dep’t 1989), DeLyra v. DeLyra, 141 A.D.2d 75 (2d. Dep’t 1988), David v. Pillai, 303 A.D.2d. 708 (2d. Dep’t 2003). The aforesaid has unequivocally been the law in the Second Department since the Appellate Division held, “[t]he trial court properly concluded that the residence . . . was marital property. While the parties' marriage was declared void, the property purchased by the parties during their purported marriage was marital property which was subject to equitable distribution (see, Domestic Relations Law § 236 [B][1][c][5]).” Lobotsky v. Lobotsky, 122 A.D.2d 253, 254 (2d. Dep’t 1986).

Persons who by either intent or happenstance find themselves in a void or voidable marriage need competent representation to ensure that they receive their fair share of the marital property, and not accept the rejection of their financial rights (under equitable distribution).


  1. It is an eye-opener for the people who rely on conventional methods of doing marriages, which do not hold any significance in the eyes of law. People might commit polygamy without realising that they are doing it. This sounds interesting, but is actually a serious offense in states which forbid such practices.
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  2. Thanks for great information you write it very clean. I am very lucky to get this tips from you

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  3. I appreciate all of the information that you have shared. Thank you for the hard work!
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  4. Since, as you say, a religious ceremony following a get, but no civil divorce, is considered as null and void, are the officiating rabbi and the couple still liable for fines and imprisonment?