From: Valence (valence10@hotmail.com)
Date: Wed Jun 18 2003 - 03:41:27 BST
> pt 2
> >RICK
> >No. In American jurisprudence the failure to disclose an ability to
> >reproduce prior to marriage constituted a fraud that served as grounds
for
> >annulment (and in several states even if the infertile party didn't
know).
JOHNNY
> Hmm, I can see why that could be an issue. But finding out afterwards, or
> just reaching that conculsion after a few years, isn't grounds, right?
RICK
Usually no, but it varies from state to state. In some states it's still
grounds if the infertile party "should have" known (ie. has previously
had medical tests which would have indicated fertility).
JOHNNY
> So that's a civil annulment? The marriage is removed from the books as if
> it never happened?
RICK
Yup. The grounds for annulment (with the exception one policy-based
category) all must have existed prior to the marriage. In effect, it's as
if the law is saying that because of X-defect... one party never effectively
consented to the marriage (ie. fraud, duress) or couldn't consent (ie.
underage, mentally ill). These marriages become "voidable", which means
they can be annulled if the one of the parties so desire (the innocent one).
This is not to be confused with things that make a marriage "void", (ie. a
previously existing marriage that has never been annulled or dissolved).
That marriage is treated as if it literally never happened... the parties
don't even have a choice... they aren't married and never were (even if they
never get an annulment).
JOHNNY
> Thanks, I see. I never hear of annulments outside the Catholic church
> context. You said you law clerked in this, huh? How common were civil
> annulments? The judge had to decide which was appropriate, right?
RICK
Yes, I spent a summer clerking for a NY State Supreme Court Family Law Judge
(don't get too impressed, in NY "supreme court" is the lowest level of
courts for some stupid reason that nobody seems to know). It was a
heartwrenching job (you try getting up in the morning and ripping families
apart, telling a mother or father they can't see children anymore, deciding
that some child has to go into the state foster-care system... it wears on
you). Anyway, Civil annulments aren't as common as divorce because they can
only be granted if one of about 4 conditions existed prior to the marriage
(ie. fraud, duress, impotence, lack of mental capacity---- each with
numerous subcategories). Moreover, voidable marriages can be 'ratified' if
the 'innocent' party learns of the fraud or duress (or whatever) and
continues to cohabit with the 'guilty' spouse. Judges do have discretion in
whether or not to grant an annulment (and appellate courts will respect a
judge's exercise of that discretion so long as it doesn't rise to the level
of abuse). That being said, annulments are usually granted fairly
mechanically. Discretion tends to only be exercised in unusual
circumstances (ie. underage-girl marries adult-male and her parents sue to
annul the marriage; The judge meets the couple and decides that despite the
fact she is technically underage, she seems to be mature and responsible
enough to be a wife; He may refuse to grant the annulment).
JOHNNY (on covenant marriages)
> I don't know much about them. I know they are designed to trap couples
into
> "what do you mean you don't want the convenant marriage? Dont you love
me?"
> And maybe if that makes some couples think about what they are commiting
> to, and maybe helps break up couples that aren't on the same wavelength,
> that's a good thing.
RICK
Maybe it works like that. But I think it would cut both ways (ie. What do
you mean we have to get the covenant marriage? Don't you trust me?).
Moreover, in reality, I fear that young couples are often "trapped" into
covenant marriages by overzealous parents and clergymen who don't have as
much at stake and may have interests of their own which conflict with those
of the married couple (but I'm a bit of a cynic sometimes, so who knows).
JOHNNY
> I was thinking about people who stick together in abusive relationships
even
> though they're not married. There's lots of lesbian and gay abuse, I
> understand. Even without marriage, people still stay in bad
relationships.
> So, between that and the fact that abuse has always been a cause for
divorce
> (and jail), I think the argument that divorce is needed for the abuse
> problem is weak, expecially considering that the possibilty of divorce, of
> abandonment, is one of the more threatening forms of abuse spouses use on
> each other.
RICK
I'm not sure I argued that "divorce is needed for the abuse problem," but
even if I did...You're mixing apples and oranges J. Liberal divorce laws
obviously won't help one who *chooses to stay* in an abusive relationship.
However, why you think those people should be the ones we look at when
deciding what remedies should be available to one who *chooses to leave* is
beyond me.
take care
rick
"A consensus means that everyone agrees to say collectively what no one
believes individually." - Abba Eban
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