Canceling a marriage makes it possible to erase all the effects: It is as if it had never existed.
The difference between a divorce and an annulment is that no link remains between the ex-spouses (no alimony ...): Legally they have never been married
Cancellation is possible because a marriage is above all a contract which, like all contracts, can be canceled for defect of consent.
Nullity is a sanction which will result in the retroactive annulment of an act whose substantive conditions are not respected.
There are two kinds of nullity which should be distinguished because they protect different interests.
It aims to protect a private interest: that of the parties in the event of error, violence, lack of consent, etc. or of people with an interest, such as parents who have not consented to the marriage of their minor child.
Therefore only a person having an interest in acting can request the nullity. The reasons for the cancellation will be assessed by the judge. The action is prescribed by 5 years.
Before the law of April 4, 2006, a cohabitation between spouses of more than 6 months, was sufficient to cover the nullity. A possibility that Article 180 of the Civil Code no longer envisages.
The invalidity action can also be brought by the public prosecutor.
It aims to protect matrimonial public order, and therefore, the general interest (bigamy, incest, incompetence of the registrar, etc.). Anyone can ask for it, the judge has no discretion, if a basic condition is lacking the nullity is automatic. The action is prescribed by 30 years.
Cancellation retroactively erases the marriage for the past and for the future.
One exception to this principle: Putative marriage
A long period of time may elapse during which the spouses have lived together and therefore acquired personal (nationality, etc.) or property rights (donations, inheritances, etc.).
In the event of annulment of the marriage, certain acquired rights will be maintained towards the “innocent spouse”, that is to say the one whose consent has been vitiated, but only if it is in his interest.
Article 201 of the Civil Code specifies that if the conditions for putativity are met, the spouse in good faith will benefit from the advantages granted by marriage such as the liquidation of the matrimonial regime (as for divorce).
Article 202 of the Civil Code provides that the annulment has no effect on children. In any case, since the regime for natural children was aligned with the regime for legitimate children, the interest of this provision has disappeared.
The different causes of marriage annulment
Impediments to marriage
The impediments to marriage provided for in article 184 of the civil code (lack of consent, impuberty, incest, incompetence of the registrar) will result in the absolute nullity of the marriage.
The total absence of consent
The spouses who will have consented to the marriage for a purpose other than that of creating a family life (fictitious marriage) incur the nullity of the marriage.
It is a hijacking of the institution of marriage. Marriage is void when the spouses have taken part in the ceremony only with a view to achieving a goal foreign to the matrimonial union (Cass. Civ., 1st of October 28, 2003, n ° 01-12.574).
Note: The law distinguishes between white marriage: the two spouses agree in advance not to enter into a married life; and the gray marriage one of the spouses engages in the marriage for different reasons (papers legalizing his presence on the territory) without informing his spouse of it who him, believes to engage in a marital life.
Contrary to contract law, fraud (the error caused in order to deceive his co-contracting party), does not constitute a defect of consent to annul a marriage.
According to an old adage of Loysel, "In marriage deceives who can". This means, that one cannot reproach a husband for having lied, or for making believe (lies by omission), that he possessed qualities which he did not have. Especially since it is practically impossible to distinguish the maneuvers of seduction from the deceitful maneuvers.
Cancellation for defect of consent is a relative nullity: It does not automatically apply, one of the spouses must request it and demonstrate how his consent was vitiated in order to obtain it.
Generally speaking, it is very difficult to get a marriage annulled. It is granted slowly by the judges, the natural procedure to end the marriage is divorce.
Moreover, to admit too easily an annulment, would amount to admitting a form of repudiation, which is contrary to French law.
More than physical violence, it is moral violence that is targeted. Article 180 paragraph 1 of the civil code, amended by law n ° 2006-399 of April 4, 2006, envisages the nullity of the marriage in the event of " coercion on the spouses or on one of them, including by reverential fear towards an ascendant, constitutes a case of nullity of the marriage».
Reverential fear is the act of submitting to moral compulsion. This manifests itself in the pressure exerted on young girls in the context of marriages arranged by the family or in-laws.
It is especially the cases of error which are causes of cancellation, whether it is an error on the person or on the substantial qualities of the person, they are studied below.
The decisive mistake to annul the marriage
It is not enough for a person to find out that they have been cheated or that they have been disappointed by their spouse who would not be as good-looking, as intelligent and / or as wealthy as he (she) made him suppose (e).
This is why the cancellation is strictly framed by law and case law.
But then, what is an error in the essential qualities?
Article 180 paragraph 2 of the civil code "If there has been an error in the person or in the essential qualities of the person, the other spouse may request the nullity of the marriage".
The error on the person
The Berthon judgment is the leading judgment in terms of annulment: The marriage will only be annulled if the error relates to the person or his identity.
In this case, a woman had married a man before discovering her past as a convict.
She asked for the annulment of the marriage, which the judges refused on the grounds that " the nullity for error in the person remains without possible extension to the simple errors on the conditions or the qualities of the person, on the blemishes which it would have undergone, and especially to the error of the husband who ignored the condemnation to afflictive or infamous sentences previously pronounced against his spouse »(Cass. Chambers reunited of April 24, 1862).
In another case the judges refused to annul the marriage of a young girl whose husband had concealed his past as a priest from her (Cass. Of July 25, 1888).
The annulment was assessed very strictly until the divorce reform of July 11, 1975, which extended the assessment of the error to the essential (substantial) qualities of the person.
The error on the essential qualities of the person
For the case law “ the error on the essential qualities of the spouse supposes not only to show that the applicant concluded the marriage under the influence of an objective error but also that such an error was decisive of his consent ».
The error is decisive whenever it is shown that a spouse would not have made a commitment if he had known a fact or a circumstance before the marriage.
The case law has retained as a decisive error:
- The existence of a previous marriage. The wife having strong religious convictions considered that the divorce did not allow to dissolve a union celebrated in the church (Cass. Civ., 1st of December 2, 1997, n ° 96-10.498).
- Ignorance of the prostitute's past of a wife who worked as an Escort girl (CA Nîmes of February 8, 2012)
- The concealment of a relationship which, started before the celebration, continued after the marriage, because the husband refused to break off his relationship (CA Rennes of December 11, 2000)
- The spouse's state of health, if the illness "really" ruins the couple (TGI Dinan of April 4, 2006)
Conversely, the error was not considered decisive for:
- The existence of a relationship with a married woman which began before the celebration of the marriage and which ceased after the celebration of the union (Cass. Civ., 1st of December 13, 2005, n ° 02-212.59)
- Thinking of a former lover on his wedding day (Lyon CA of October 17, 2011).
- The concealment of his HIV status because it "requires precautions but does not prohibit sexual relations" (CA Agen July 4, 2006)
- The absence of virginity of the wife (CA Douai of November 17, 2008)
In this last case which has caused much ink to flow, the Lille TGI had initially annulled the marriage on the grounds that the wife's virginity came within the substantial qualities expected by the husband (Lille TGI of April 1 2008)
After the media uproar that followed, the Keeper of the Seals at the time (R. Dati) ordered the prosecution to appeal the judgment. The Douai Court of Appeal overturned the decision in particular on the grounds that "the wife's virginity cannot be considered as an essential quality while it has no impact on marital life".
These case law decisions can seem very contradictory.
This is because the grounds for annulment and the evidence are in the sovereign discretion of the trial judges. Everything will depend on the file and above all on both subjective criteria (the husband would not have made a commitment if he had been aware of what was discovered after the marriage) and objectives (with regard to what "society" considers to be. necessary for married life) which will push a spouse to request annulment.
If the annulment of the marriage is not granted, the spouses can still initiate divorce proceedings.