- Consolidated Laws - Domestic Relations
ARTICLE 9
ACTION TO ANNUL A MARRIAGE OR DECLARE IT VOID
Section 140. Action for judgment declaring nullity of void marriages or
annulling voidable marriage.
(a) Former husband or wife living.
(b) Party under age of consent.
(c) Party a mentally retarded person or mentally ill
person.
(d) Physical incapacity.
(e) Consent by force, duress or fraud.
(f) Incurable mental illness for five years.
141. Action to annul marriage on ground of incurable mental
illness for five years; procedure; support.
142. Dismissal of complaint in action by next friend to annul a
marriage.
143. Jury trial.
144. Proof required.
146. Judgment, how far conclusive.
S 140. Action for judgment declaring nullity of void marriages or
annulling voidable marriage. (a) Former husband or wife living. An
action to declare the nullity of a void marriage upon the ground that
the former husband or wife of one of the parties was living, the former
marriage being in force, may be maintained by either of the parties
during the life-time of the other, or by the former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the
ground that one or both of the parties had not attained the age of legal
consent may be maintained by the infant, or by either parent of the
infant, or by the guardian of the infant`s person; or the court may
allow the action to be maintained by any person as the next friend of
the infant. But a marriage shall not be annulled under this subdivision
at the suit of a party who was of the age of legal consent when it was
contracted, or by a party who for any time after he or she attained that
age freely cohabited with the other party as husband or wife.
(c) Party a mentally retarded person or mentally ill person. An
action to annul a marriage on the ground that one of the parties thereto
was a mentally retarded person may be maintained at any time during the
life-time of either party by any relative of a mentally retarded person,
who has an interest to avoid the marriage. An action to annul a
marriage on the ground that one of the parties thereto was a mentally
ill person may be maintained at any time during the continuance of the
mental illness, or, after the death of the mentally ill person in that
condition, and during the life of the other party to the marriage, by
any relative of the mentally ill person who has an interest to avoid the
marriage. Such an action may also be maintained by the mentally ill
person at any time after restoration to a sound mind; but in that case,
the marriage should not be annulled if it appears that the parties
freely cohabited as husband and wife after the mentally ill person was
restored to a sound mind. Where one of the parties to a marriage was a
mentally ill person at the time of the marriage, an action may also be
maintained by the other party at any time during the continuance of the
mental illness, provided the plaintiff did not know of the mental
illness at the time of the marriage. Where no relative of the mentally
retarded person or mentally ill person brings an action to annul the
marriage and the mentally ill person is not restored to sound mind, the
court may allow an action for that purpose to be maintained at any time
during the life-time of both the parties to the marriage, by any person
as the next friend of the mentally retarded person or mentally ill
person.
(d) Physical incapacity. An action to annul a marriage on the ground
that one of the parties was physically incapable of entering into the
marriage state may be maintained by the injured party against the party
whose incapacity is alleged; or such an action may be maintained by the
party who was incapable against the other party, provided the incapable
party was unaware of the incapacity at the time of marriage, or if aware
of such incapacity, did not know it was incurable. Such an action can
be maintained only where an incapacity continues and is incurable, and
must be commenced before five years have expired since the marriage.
(e) Consent by force, duress or fraud. An action to annul a marriage
on the ground that the consent of one of the parties thereto was
obtained by force or duress may be maintained at any time by the party
whose consent was so obtained. An action to annul a marriage on the
ground that the consent of one of the parties thereto was obtained by
fraud may be maintained by the party whose consent was so obtained
within the limitations of time for enforcing a civil remedy of the civil
practice law and rules. Any such action may also be maintained during
the life-time of the other party by the parent, or the guardian of the
person of the party whose consent was so obtained, or by any relative of
that party who has an interest to avoid the marriage, provided that in
an action to annul a marriage on the ground of fraud the limitation
prescribed in the civil practice law and rules has not run. But a
marriage shall not be annulled on the ground of force or duress if it
appears that, at any time before the commencement of the action, the
parties thereto voluntarily cohabited as husband and wife; or on the
ground of fraud, if it appears that, at any time before the commencement
thereof, the parties voluntarily cohabited as husband and wife, with a
full knowledge of the facts constituting the fraud.
(f) Incurable mental illness for five years. An action to annul a
marriage upon the ground that one of the parties has been incurably
mentally ill for a period of five years or more may be maintained by or
on behalf of either of the parties to such marriage.
S 141. Action to annul marriage on ground of incurable mental illness
for five years; procedure; support. 1. If the marriage be annulled on
the ground of the mental illness of a spouse, the court may include in
the judgment an order providing for his or her suitable support, care
and maintenance during life from the property or income of the other
spouse. The court shall specify the amount of such support, care and
maintenance and, before rendering judgment, may exact security for such
support, care and maintenance during life and shall order the filing and
recording of the instrument creating such security in the office of the
clerk of the county in which the action is brought and the filing of two
certified copies thereof with the office of mental health at its Albany
office. The provisions of the judgment relating to support, care and
maintenance of the mentally ill spouse during his or her life and to
security therefor may be modified or amended at any time by the court
upon due notice to the other party and other interested parties as the
court may direct and in proper case the value of the suitable support,
care and maintenance to such spouse during the balance of his or her
life based upon appropriate mortality tables may be adjudged and
determined by the court in which the estate of a deceased spouse is
being administered and the same may be recovered on behalf of the
mentally ill spouse from the estate of the deceased spouse. If the
mentally ill spouse is maintained in an institution or otherwise under
the jurisdiction of the office of mental health, the suitable support,
care and maintenance as required in the judgment, unless otherwise
directed by the court, shall be the charge established by the
commissioner of mental health and such charge may be recovered in the
manner provided by law. Such amount shall continue to be so required for
the support of the mentally ill spouse in the event of his or her
removal from the custody of the office of mental health unless
thereafter otherwise directed by the court. Any security exacted for the
suitable support, care and maintenance during life of the mentally ill
spouse shall be available to that spouse or any person on his or her
behalf or to any person or agency providing support, care and
maintenance for such spouse in the event that the required payments for
such support, care and maintenance have not been made and upon
application to the court the other spouse shall be ordered and directed
to provide additional or further security.
2. Judgment annulling a marriage on such ground shall not be rendered
until, in addition to any other proofs in the case, a thorough
examination of the alleged mentally ill party shall have been made by
three physicians who are recognized authorities on mental disease, to be
appointed by the court, all of whom shall have agreed that such party is
incurably mentally ill and shall have so reported to the court. In such
action, the testimony of a physician attached to a state hospital in the
department of mental hygiene as to information which he acquired in
attending a patient in a professional capacity at such hospital, shall
be taken before a referee appointed by a judge of the court in which
such action is pending if the court in its discretion shall determine
that the distance such physician must travel to attend the trial would
be a great inconvenience to him or the hospital, or that other
sufficient reason exists for the appointment of a referee for such
purpose; provided, however, that any judge of such court at any time in
his discretion, notwithstanding such deposition, may order that a
subpoena issue for the attendance and examination of such physician upon
the trial of the action. In such case a copy of the order shall be
served together with the subpoena.
3. Except as provided in paragraph five, when the person alleged to be
incurably mentally ill is confined in a state hospital for the mentally
ill of this state, one, and one only, of the physicians so appointed
shall be a member of the resident medical staff of such hospital
designated by the director thereof. If the alleged incurably mentally
ill person is not confined in a state hospital for the mentally ill of
this state, one of the examining physicians named in pursuance of this
section shall be the director of a state hospital for the mentally ill
if the alleged mentally ill person is within this state, or the
superintendent or comparable officer of a state hospital for the
mentally ill of the state or country where the alleged mentally ill
person is present if the alleged mentally ill person is outside of this
state. The report of such superintendent or comparable officer of a
state hospital for the mentally ill of such other state or country shall
not be received in evidence or considered by the court unless he shall
be a well educated physician with at least five years of training and
experience in the care and treatment of persons suffering from mental
disorders.
4. When the plaintiff has been permitted to bring such action or
prosecute the same as a poor person and the alleged incurably mentally
ill defendant is present within this state, the court shall appoint
three physicians who are examining physicians, as defined by section
1.05 of the mental hygiene law, in the employment of the department of
mental hygiene. If the alleged mentally ill person be outside of this
state, the court may, upon proof thereof, appoint three examining
physicians who are qualified under the laws or regulations of the
foreign state or country where the alleged mentally ill person is
present and who have qualifications comparable to those specified in
section 1.05 of the mental hygiene law of the state, provided, however,
that one of such examining physicians shall be the superintendent or
comparable officer of a state hospital for the mentally ill of such
foreign state or country with qualifications as specified in paragraph
four. Such examiners shall make the examination of the alleged mentally
ill party present in this state and file with the court a verified
report of their findings and conclusions without costs to such plaintiff
when the plaintiff is a poor person. Examination of an alleged mentally
ill party present outside of this state shall be made at the expense of
the plaintiff. Such report shall be received in evidence upon the trial
of the action without the personal appearance or testimony of such
examiners. If the court shall deem it necessary that the testimony of
any such examiners be taken, the court may order the taking of such
testimony by deposition only. The examiners so appointed by the court
may be members of the resident medical staff of any state hospital,
whether or not the alleged mentally ill person is being confined there.
S 142. Dismissal of complaint in action by next friend to annul a
marriage. Where the next friend of an infant, mentally retarded person
or mentally ill person maintains an action annulling a marriage, the
court may dismiss the complaint if justice so requires, although, in a
like case, the party to the marriage, if plaintiff, would be entitled to
judgment.
S 143. Jury trial. In an action to annul a marriage, except where it
is founded upon an allegation of the physical incapacity of one of the
parties thereto, there is a right to trial by a jury of all the issues
of fact.
S 144. Proof required. 1. In an action to annul a marriage, a final
judgment annulling the marriage shall not be rendered by default for
want of an appearance or pleading, or by consent, or upon a trial of an
issue, without proof of the facts upon which the allegation of nullity
is founded. Plaintiff shall prove that there has been no such
cohabitation between the parties as would bar a judgment except that in
an action under subdivision (c) of section one hundred forty the
plaintiff may prove instead that the mental illness still continues.
2. In any action, whether or not contested, brought to annul a
marriage, the declaration or confession of either party to the marriage
is not alone sufficient as proof, but other satisfactory evidence of the
facts must be produced.
S 146. Judgment, how far conclusive. A final judgment, annulling a
marriage rendered during the lifetime of both the parties is conclusive
evidence of the invalidity of the marriage in every court of record or
not of record, in any action or special proceeding, civil or criminal.
Such a judgment rendered after the death of either party to the marriage
is conclusive only as against the parties to the action and those
claiming under them.
