Annulments Based on Fraud: What is the "Essence" of

Marriage? Part One in a Two-Part Series of Columns on

Traditional and Modern Annulment
Larry and Joy Farr were married for thirty years--the first time around. Then, in 2007, three years
after getting a divorce, they remarried. But this time, their marriage only lasted three years, at
which point he filed for divorce and she cross-filed for an annulment -- a declaration that their
second marriage was invalid from the get-go.
According to Joy, she only agreed to remarry Larry based on his representation that he had a
terminal illness; she didnt want him to die alone. But he survived, and she cried foul. The
second marriage, she alleged, had been based on fraud -- a false representation that he would
soon be dead.
Is this type of misrepresentation, if proven, grounds for annulment? A Colorado appellate court
said yes, in Farr v. Farr. In the first part of this two-part series, I will discuss the traditional
doctrine of annulments based on fraud and the ways in which courts kept a tight leash on such
claims. In Part Two, I will discuss the shift towards a more lenient definition of fraud that is
exemplified by the ruling in Farr, an opinion I will analyze in detail.
What is an Annulment?
Divorce, as we all know, is the usual remedy for a failed marriage. One spouse petitions for a
divorce alleging, depending on the states requirements, either "irreconcilable differences," a
period of separation, or one of the enumerated types of marital "fault." A decree of divorce
dissolves a marriage that was validly contracted, but ultimately failed.
Annulment is another way of ending a marriage. As with divorce, a decree of annulment ends a
marriage. But, unlike with divorce, a decree of annulment declares that no valid marriage ever
existed because of some defect at its inception.
Annulment is another way of ending a marriage. As with divorce, a decree of annulment ends a
marriage. But, unlike with divorce, a decree of annulment declares that no valid marriage ever
existed because of some defect at its inception.
Compared with divorce, annulments have always been relatively rare, although they often appeal
to devout Roman Catholics who, if a first marriage is annulled, can then remarry without
objection from the Church. Today, we hear little about annulments unless they involve famous
Catholic politicians trying to pave the way to religious remarriage, or celebrities trying to avoid
the obligations of ill-considered quickie marriages contracted, often drunkenly, in Vegas.

Annulments are, in theory, tightly regulated. Each state provides specific circumstances in which
a marriage can be annulled. Typical grounds for annulment include: bigamy, impotence, infancy,
mental incompetence, incest, fraud, and duressall impediments to lawful marriage that must
have existed at the time the union was celebrated to be valid grounds. If one of the more serious
defects in this list exists -- bigamy or incest, for example -- then the marriage is void whether or
not either party ever files for a decree of annulment.
Annulments Based on Fraud: The Traditional Approach
The history of the law involving annulments based on fraud is instructive. Even going quite far
back in American history, annulment laws in this country have generally included "fraud" as one
of the available grounds. But not every proven case of deception results in a decree of
annulment. Courts have often refused to nullify marriages for fraud if the innocent party was
willfully blind to the truth or too easily fooled by statements made during courtship.
Courts also require that the fraud induce the marriage: The duped spouse had to show that he or
she genuinely relied on the misrepresentation in deciding to go through with the marriage. An
appellate court in Missouri denied an annulment in Blair v. Blair in 2004, even though the wife
fraudulently misrepresented to her husband, before he agreed to marry her, that he was the father
of her child. The court concluded that he had other reasons for marrying her and thus did not rely
on the misrepresentation in making his decision.
A Washington state court likewise refused an annulment in its 1991 decision in Radochonski v.
Radochonski to a husband whose wife had deceived him about her plans to continue dating
another man while married and about an alleged secret purpose for marriage: to gain permanent
residency status in the United States. He was unable to prove, however, that he relied on her
misrepresentations or concealments in deciding whether to marry her.
Even when a solid case of fraud is proven, courts might decide that it is outweighed by
countervailing factors. A long marriage is harder to annul than a short one; a consummated
marriage is harder to annul than an unconsummated one; and a marriage that has produced
children was harder to annul than one with an empty nest.
Perhaps the most important limitation built in to the traditional approach to fraud-based
annulments is the requirement that the misrepresentation relate to an essential aspect of marriage.
Courts did not, for the most part, apply traditional contract principles when defining fraud in the
marriage context. (Those principles would allow rescission of a contract for fraud that is material
-- i.e., an intentional misstatement but for which the defrauded party would have refused to enter
into the agreement.) But "fraud" in the annulment context was generally construed more strictly,
to include only those misrepresentations that went to the heart of marriage and not just the
particular marriage in question, but any marriage.

The so-called "essentials of the marriage" test that was followed in most states dates to an 1862
Massachusetts case, Reynolds v. Reynolds. In that case, the court granted an annulment to
Michael Reynolds, whose wife, Bridget, had passed herself off as "chaste and virtuous," while
secretly being pregnant with another man's child. Had Bridget merely been "defiled and
debauched," the court reasoned, Michael would have no right to an annulment because
misrepresentations as to "character, fortune, health or temper," or other "accidental qualities"
would not be enough to make a marriage voidable. But Bridget's sin was greater, in the court's
eyes, because it undermined her husband's implicit "right to require that his wife shall not bear to
his bed aliens to his blood and lineage." Moreover, the court noted, as a pregnant woman, she
was "incapable of bearing a child to her husband at the time of her marriage," and thus "unable to
perform an important part of the contract." Her concealed pregnancy thus went to the "essentials
of the marriage."
As it developed in most states, the "essentials of the marriage" test tended to restrict annulments
based on fraud to those cases involving misrepresentations about sex or procreation those
matters that were fundamental to the very definition of marriage. Thus, plaintiffs who alleged
that their spouses lied about pregnancy, infertility, impotence, frigidity, venereal disease, or their
willingness to have children were more successful in obtaining annulments than those who
complained of misrepresentations about wealth, character, alcoholism, or other serious but not, in
courts' eyes, fundamental matters. As one court noted, it is not enough to support an annulment
based on fraud to prove that a husband denied having a drinking problem and yet "turned out to
be . . . a lazy, unshaven disappointment with a drinking problem." Divorce is the remedy for the
usual disappointments of marriage.
Fraud-based annulments were also sometimes granted -- as I discussed in a previous column -for misrepresentations about race, ancestry, and religion, qualities that were once believed to be
of critical importance to a decision to marry.
A New Modern Approach?
Today, annulments based on fraud are sometimes granted regardless of whether the real test for
fraud is met: Judges simply look the other way and treat "fraud" as a catchall mechanism for
dissolving hasty or ill-considered marriages. According to some sources, fraud is the most
common basis for annulment petitions today.
As I discussed in a column written a decade ago, Darva Conger obtained an annulment of a
marriage to a man she met and married during the course of the two-hour television show Who
Wants to Marry a Millionaire? after learning that he had been charged with assaulting a prior
girlfriend. Britney Spears obtained an annulment, in a Las Vegas court, of her 50-hour marriage
to childhood friend Jason Alexander based on "fraud" of unspecified origin. Actress Renee
Zellwegger annulled her 128-day marriage to country crooner Kenny Chesney based on fraud as

well, leading to rampant speculation in the tabloid press about the subject of the fraud; some
guessed that Chesney might be gay. Zellweger issued a press release, however, reassuring fans
that "fraud" is "simply legal language . . . and not a reflection of Kenny's character."
But when annulment cases reach appellate courts, courts have to grapple with the doctrine of
fraud. Do they still follow the essentials of marriage test? In Part Two of this series, I will argue
that there has been at least a subtle shift in doctrine away from the traditional "essentials of the
marriage" approach in some jurisdictions. Farr v. Farr, the case mentioned at the beginning of
this column, exemplifies this shift.