Valid, Void, and Voidable Marriages in New York: Understanding the Distinctions

Most people who ask whether their marriage is “valid” are really asking a practical question: do I need a divorce, can I get an annulment instead, and what happens to our property and our children either way? New York law sorts marriages into three categories, valid, void and voidable, and the category controls the answer.

What makes a marriage valid in New York?

A marriage performed in New York is valid when the couple obtains a marriage license, the ceremony is performed by an officiant the law authorizes (DRL § 11 lists them, including clergy, judges and certain public officials), and both parties have the legal capacity to marry and freely consent. A marriage is presumed valid, and the person who says otherwise must prove it.

New York does not create marriages by living together; it abolished common-law marriage in 1933, although it recognizes a common-law marriage validly formed in a state that allows one. See our guide to common-law marriage in New York. Marriages performed in other countries are covered in our guide to foreign marriage recognition.

What is a void marriage?

A void marriage is invalid from the moment it is entered. Technically it needs no court order to be void, but a court declaration is usually wise before anyone remarries, divides property or relies on the marriage’s invalidity. New York has two kinds of void marriages.

Marriages between close relatives (DRL § 5)

Under DRL § 5, a marriage is “incestuous and void” between an ancestor and a descendant; a brother and sister of the whole or half blood; or an uncle and niece or an aunt and nephew. The rule applies whether the relationship is legitimate or not. First cousins are not on the list, so a marriage between first cousins is permitted in New York.

Marriages while a prior spouse is living (DRL § 6)

A marriage is “absolutely void” if one party’s spouse from an earlier marriage is living and the earlier marriage has not been dissolved or annulled (DRL § 6). It does not matter how long the second couple lived together or whether they had children. This is why an earlier divorce must be final, and valid in New York, before a new marriage. If the earlier divorce was granted abroad, see our guide to recognition of foreign divorces.

An action to declare a marriage void on this ground may be brought by either party during the other’s lifetime, or by the earlier spouse (DRL § 140(a)).

What is a voidable marriage?

A voidable marriage is valid unless and until a court annuls it. Under DRL § 7, a marriage is void from the time a court declares its nullity if either party:

1. was under the age of legal consent, which is eighteen;
2. was incapable of consenting to a marriage for want of understanding;
3. was incapable of entering into the married state from physical cause;
4. consented because of force, duress or fraud; or
5. has been incurably mentally ill for five years or more.

DRL § 140 sets out, ground by ground, who may bring the case and what defeats it. The most important limits are summarized below.

Age

New York has prohibited any marriage in which either party is under eighteen since 2021 (DRL § 15-a). For a marriage that took place when a party was under the age of consent, DRL § 140(b) controls who may seek an annulment, and it bars the claim by a party who, after reaching that age, freely lived with the other as a spouse.

Lack of understanding

If a party could not understand the nature of the marriage when it took place, DRL § 140(c) allows certain relatives, the affected party after regaining capacity, and in some cases the other spouse, to seek an annulment. Living together freely as spouses after capacity returns can defeat the claim.

Physical incapacity

An annulment for physical incapacity is available only if the incapacity “continues and is incurable,” and the case “must be commenced before five years have expired since the marriage” (DRL § 140(d)).

Force or duress

The party whose consent was obtained by force or duress may bring the case at any time, but a marriage will not be annulled on that ground if the parties voluntarily lived together as spouses before the case began (DRL § 140(e)).

Fraud

Fraud is the most litigated ground and the most misunderstood. The deceived spouse must prove that consent to the marriage was obtained by fraud, and whether a particular deception is serious enough is a fact-specific question for the court. Three rules frame every fraud case:

• Cohabitation after discovery. A marriage will not be annulled for fraud if, before the case began, the spouses voluntarily lived together as spouses “with a full knowledge of the facts constituting the fraud” (DRL § 140(e)).
• Time limit. The case must be brought within the limitations period for fraud claims (DRL § 140(e)), which is the greater of six years from the fraud or two years from when it was or reasonably could have been discovered (CPLR 213(8)).
• Proof. The spouses’ own statements are not enough. “The declaration or confession of either party to the marriage is not alone sufficient as proof”; other satisfactory evidence is required (DRL § 144).

Incurable mental illness for five years

DRL § 7(5) allows an annulment where a spouse has been incurably mentally ill for five years or more. These cases involve special procedures and medical proof, and they call for individual advice.

How is an annulment different from a divorce?

Both are matrimonial actions in the Supreme Court, and many of the same rules apply:

• Residency. The residency requirements of DRL § 230 apply to an action to annul a marriage or declare it void, just as they apply to a divorce. Usually one spouse needs one or two years of continuous New York residence.
• Proof. A court may not annul a marriage by default, by consent or after trial “without proof of the facts upon which the allegation of nullity is founded” (DRL § 144). A divorce on the no-fault ground needs only a sworn statement that the marriage has broken down irretrievably for at least six months (DRL § 170(7)).
• Property and support. The court can divide property in an action for the “annulment or declaration of the nullity of a marriage” (DRL § 236(B)(5)(a)) and can award maintenance in any matrimonial action (DRL § 236(B)(6)(a)). Ending a marriage by annulment does not automatically erase those claims.
• Children. The court decides custody and child support in annulment and nullity actions under the same standards as in a divorce (DRL § 240(1)(a)), and a child of a void or voidable marriage is “the legitimate child of both birth parents” (DRL § 24).

Because an annulment requires proof of a specific ground, and the no-fault divorce ground does not, many spouses who could seek an annulment choose a divorce instead. If both spouses agree on the terms, an uncontested divorce is often the simpler path. An annulment can still matter for personal or religious reasons, or where the marriage is void.

Religious annulments and religious divorces

A religious annulment or religious divorce has no effect on a civil marriage; only a court can end a marriage under New York law. The reverse is also true: a civil annulment or divorce does not end a marriage under religious law. For Jewish couples, the civil case and the Get are separate processes; see our guide to the civil and religious requirements of a Jewish divorce.

Common misunderstandings

• “A short marriage can simply be annulled.” The length of the marriage is not a ground. An annulment requires one of the statutory grounds, proven with evidence.
• “An annulment means the marriage never happened, so there is nothing to divide.” The court can still divide property and award maintenance in an annulment or nullity action.
• “Annulment affects the children’s status.” It does not. Children of void and voidable marriages are legitimate.
• “A void marriage needs no paperwork.” It may be void by law, but a court declaration is the reliable way to establish that before remarrying or dividing assets. Our checklist for remarrying after a divorce lists the documents to have in order.

What to do if you question your marriage’s validity

• Gather the marriage license and certificate, any earlier divorce or annulment papers for either spouse, and documents about where and how the ceremony took place.
• If fraud or duress is involved, write down when you learned the key facts and whether you lived together afterward; the timing can decide the case.
• Do not remarry until the status of the current marriage is resolved by a court.
• Get advice before filing, because the choice between annulment, a declaration of nullity and divorce affects what you must prove and how long the case may take.

Frequently Asked Questions

What is the difference between a void and a voidable marriage in New York?

A void marriage is invalid from the start: a marriage between close relatives listed in DRL § 5, or one entered while a spouse from an earlier marriage was still living and that marriage had not ended (DRL § 6). A voidable marriage is valid until a court annuls it on a ground listed in DRL § 7, such as fraud, duress, physical incapacity or a party being under 18.

Can I get an annulment because the marriage was short?

No. The length of the marriage is not a ground for annulment in New York. You must prove one of the grounds in DRL § 7, or show that the marriage was void under DRL § 5 or § 6. A court cannot annul a marriage, even by default or consent, without proof of the facts beyond the spouses’ own statements (DRL § 144).

Is there a deadline to annul a marriage for fraud in New York?

Yes. A fraud annulment must be brought within the limitations period for fraud: the greater of six years from the fraud or two years from when it was or should have been discovered (CPLR 213(8)). Separately, the claim is barred if the spouses voluntarily lived together as spouses after the deceived spouse knew the facts constituting the fraud (DRL § 140(e)).

Are children legitimate if a marriage is annulled?

Yes. Under DRL § 24, a child born to parents who entered a civil or religious marriage is the legitimate child of both parents even if the marriage is void or voidable, or is later annulled or declared void. In an annulment or nullity action, the court decides custody and child support under the same standards that apply in a divorce (DRL § 240).

Can property be divided in a New York annulment?

Yes. The court’s power to divide marital property applies in an action for the annulment or declaration of the nullity of a marriage (DRL § 236(B)(5)(a)), and maintenance can be awarded in any matrimonial action (DRL § 236(B)(6)(a)). Ending a marriage by annulment rather than divorce does not, by itself, defeat a claim to share property or receive support.

If you are unsure whether your marriage is valid, or whether annulment or divorce is the better route, Joel Yacoob can review your documents and explain the options. Learn more about our uncontested divorce and contested divorce practices, or start your case online.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different, and annulment cases turn on their specific facts; consult a lawyer about your own circumstances.