Jim Porter: Annulment a possibility?
December 10, 2009
Today’s case illustrates why some people should stay single. (And we are not talking about that certain golfer).
Family Code 720 reads: and#8220;Husband and wife contract toward each other obligations of mutual respect, fidelity, and support.and#8221; Here is what happens when fidelity is missing. That should get your interest.
In 1999, Jorge and Lilia were married in a Mexican marriage ceremony in Moreno Valley, Calif. (I told you this was not about Tiger). No marriage license was issued by the State of California.
At the time, Lilia’s prior divorce had not been finaled. When Jorge and Lilia realized their marriage was void and#8212; for three or four legal reasons and#8212; they remarried in 2001. Their second mistake.
Jorge, ever the scoundrel, filed a petition for dissolution of that marriage in 2005 after Lilia discovered that he had begun an affair with her sister prior to their 2001 marriage, which lasted into 2005.
Jorge married Lilia to get his U.S. citizenship. Now he wanted half of her property, which interestingly, was substantial.
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The trial court concluded the 1999 marriage was void under the laws of Mexico and California, and also found the 2001 marriage was void because Jorge perpetrated a fraud on Lilia by carrying on an extramarital affair with her sister and#8212; starting before the marriage. Scumbag.
Jorge appealed. Annulling a marriage for fraud, given the things that fiances routinely promise each other, is a difficult thing to do in California.
The Court of Appeal agreed the 1999 marriage was void, and considered whether the 2001 marriage could be annulled by Lilia because Jorge had a thing going with her sister when they got married. A marriage in California may be annulled for fraud but only in an extreme case where the fraud goes to the very essence of the marriage relationship.
For example, a promise to be a kind, dutiful and affectionate spouse cannot be the basis of an annulment. Good thing or all of our marriages would be annulled.
The longstanding rule is that neither spouse may get an annulment on the ground of fraud and misrepresentation to the other concerning character, habits, chastity, business, social standing or financial worth.
For sure many have tried. Concealment of incontinence, temper, idleness, extravagance, coldness or lack of represented fortune will not justify an annulment. That is right out of the case. I couldn’t have made up those words. (Although they fairly well describe me).
Historically annulments based on fraud have only been granted in cases where the fraud relates in some way to the sexual, procreative, or child-rearing aspects of marriage. Concealing sterility can be the basis of an annulment, or concealment of pregnancy.
The Court of Appeal upheld the trial court, finding and#8220;fidelityand#8221; missing from the 2001 marriage. Jorge purposely deceived Lilia into thinking he would perform the contractual obligation of fidelity when in fact he was also sleeping with her sister. Which I believe we call infidelity. Infidelity can get famous people into trouble.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a real estate broker and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firm’s website, http://www.portersimon.com.