Annulment is a legal procedure in secular and religious legal systems to declare unlawful and canceled marriages. Unlike divorce, it is usually retroactive, meaning that a canceled marriage is considered invalid from the start almost as if it never happened (though some jurisdictions specify that marriage is only void since the date of cancellation; for example, this is the case in section 12 of Matrimonial Causes Act 1973 in England and Wales). In legal terminology, the cancellation renders a null or canceled marriage.
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Void vs pernikahan voidable
The difference exists between marriage void and marriage voidable .
A canceled marriage is a marriage that has no legal recognition (illegally legally in the first place, ie cancel ab initio ). Such a marriage automatically does not exist, although nullity declaration is required to set this. The process of obtaining a nullity declaration is similar to a cancellation process. Although retroactive, children born before cancellation are considered valid in many countries. The reasons for a canceled marriage may include, depending on jurisdiction, consanguinity (incestual marriage), bigami, group marriage, child marriage.
A cancelable marriage is a cancelable marriage on the option of one of the parties . This is a legal marriage, but it can be canceled if it is opposed in court by one of the parties in the marriage. The validity of a canceled marriage can only be made by either party in the marriage; thus, irrevocable marriages can not be undone after the death of either party. Marriage can be canceled for various reasons, depending on the jurisdiction. Forced/forced marriages can usually be canceled. In countries where the law of marriage is influenced by religion (especially Roman Catholicism) there can be many reasons for marriage to be canceled (see below).
The main difference between rape and marriage that can be aborted is that, in the first case, because it is illegitimate from the beginning, it can be canceled ex officio; while in the latter case only a spouse who himself can request a cancellation (in some cases as if the spouse is a minor or mentally disabled, a third party representative such as a parent, legal guardian or child protector service may initiate a cancellation act as legal representative of the couple). These differences are highly relevant, because they represent official policies on issues such as forced marriage, for example: if the marriage is legally classified as null and void - then the state may cancel it even against the wishes of the spouse; if it can be canceled - then the state can not act if there is no plea by spouse even if the state knows that the marriage was forced.
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Christianity
Catholicism
In canonical law of the Catholic Church, the cancellation is properly called the "Nullity Declaration", because according to Catholic doctrine, the marriage of the baptized person is the sacrament and, after being perfected and thus confirmed, can not be dissolved as long as the party for it lives. A "Nullity Declaration" is not a marriage dissolution, but only legal findings that a legal marriage has never been contracted. This is analogous to the finding that the sales contract is invalid, and hence, that the property for sale should be considered never legally transferred to the ownership of others. A divorce, on the other hand, is seen as returning the property after an enhanced sale.
The Pope of Rome may have excluded from the marriage of ratum sed non consummatum since, after ratification ( ratum ) but not perfected ( sed non consummatum ), that is not true can be solved. A legitimate natural marriage is not considered a sacrament, if at least one party is not baptized. In certain circumstances, it can be dissolved in the case of Pauline privileges and the privilege of Petrine, but only for the greater good of the spiritual welfare of either party.
The church holds the exchange of agreement between couples to be an indispensable element that "makes marriage". The consent consists of "the actions of men with whom the couple give themselves to each other": "I invite you to be my wife" - "I invite you to be my husband." This Agreement that binds one another to each other finds fulfillment in two "into one flesh". If there is no consent, there is no marriage. Agreement shall be the act of will of each contracting party, free from coercion or severe external fear. No human power can replace this agreement. If this freedom is less marriage is invalid. For this reason (or for any other reason that the marriage is null and void) the Church, after the examination of the situation by a competent ecclesiastical court, can declare a zero marriage, that is, that marriage never existed. In this case the contracting parties are free to marry, provided that the natural obligations of the previous union are released. - Catechism of the Catholic Church , 1626-1629
While such cancellation is a statement that "marriage never existed," the Church acknowledged that it was an alleged marriage, which caused "natural obligations". In canon law, children born or born of legitimate marriage or marriage are legitimate, and unauthorized children are legitimized by the alleged marriage of their parents, such as legitimate weddings.
Certain conditions are necessary for marriage contracts to apply in canon law. The lack of any of these conditions makes marriage illegal and is the legal basis for nullity declarations. Therefore, regardless of the questions about the inner problems discussed below, there are four classifications of contract defects: form defects, contract defects, disability defects, capacity defects. For cancellation, evidence is required of any of these defects, since canon law considers all marriages to be legitimate until proven otherwise.
Canon's law imposes a canonical barrier to marriage. A severe obstacle prevents marriage from a legitimate contract altogether and makes the union the alleged marriage, while the barriers of prohibition make marriage lawful but illegitimate. The resulting union is called an alleged marriage. Unauthorized marriage can then be validated, either by simple convalidation (renewal of consent replacing unlawful consent) or by sanatio in radice ("root healing", retroactive dispensation from obstacles barriers). Some obstacles can be removed, while de jure divino (from divine law) may not be abolished.
In some countries, such as Italy, where the marriage of the Catholic Church is automatically transcribed to civilian records, the Church's declaration of cancellation may be given elsewhere and treated as equivalent to civil divorce.
Anglicanism
The Church of England, the mother church of the Anglican Communion throughout the world, has historically the right to grant a cancellation, while divorce "is only available through the Parliament Act." Examples where the cancellation is given by the Anglican Church including minors, have committed fraud, using violence, and madness.
Methodism
Methodist Theology Today , diedit oleh Clive Marsh, menyatakan bahwa:
when the minister said, "I declare you husband and wife," they not only declare marriage - they create it by converting the couple into a married couple. By law they are now husband and wife in society. Spiritually, from a sacramental point of view, they join together as one in the eyes of God. One minute before they make their promise, they can cancel the wedding. After they say it, the couple must go through a divorce or cancellation to cancel the marriage.
Islam
Faskh means "to cancel" in Islam. This is the procedure given by Sharia to judicially cancel the marriage.
A man need no reason to divorce his wife in Islam. To divorce, he can immediately call Talaq and part with the dowries he gave before marriage; or, he can practice the doctrine in the case of adultery, with four witnesses who see the wife committing adultery (which is almost impossible) or by certifying and swearing to Allah four times, and Shariah requires a court to grant the requested divorce by the man.
In addition, Shariah gives Muslim women a simple way to end their marital relationship and without stating the reason. Faskh or (kholo) (cancellation) doctrine determines a particular situation when a Sharia court can grant its request and cancel the marriage.
The reasons for Faskh are: (a) irregular marriage ( fasid ), (b) forbidden marriages (c), (c) marriage contracted by non-Muslim husbands who adopt Islam after marriage, (d) husband or wife becomes apostate after marriage, (e) husband can not complete marriage. In each of these cases, the wife must provide four independent witnesses acceptable by Qadi (religious judges), who have the discretion to declare the evidence unacceptable.
In Sunni school Maliki jurisprudence (fiqh), cruelty, disease, life-threatening diseases and desertion are additional reasons approved by the Shariah for a wife or husband to seek marital cancellation. In this case also, the wife must provide two male or one male witnesses and two female witnesses or in some cases four witnesses, acceptable by Qadi (religious judges), who have the discretion to declare evidence. not acceptable.
In certain circumstances, an unrelated Muslim can petition to Qadi to cancel the marriage of a Muslim couple who may not want the marriage to end. For example, if a third party detects an apostasy from Islam by a husband or wife (through religious blasphemy, failure to respect Sharia, or conversion of a husband or wife or both from Islam to Christianity, etc.). In cases of apostasy, in addition to the cancellation of marriage, apostates may face additional penalties such as death penalty, imprisonment and civil punishment unless they repent and return to Islam.
United States
In the United States, the law governing cancellation differs in every state. Although the reasons for seeking cancellation differ, due to factors that may disqualify a person for cancellation, the general basis for cancellation includes the following:
- Marriage between close relatives. The state usually forbids marriage between parents and children, grandparents, or between siblings, and many limit marriage with first cousins.
- Mental inability. A person who is not legally able to approve marriage based on mental illness or disability, including the incapacity caused by poisoning, will be able to seek cancellation.
- Underage marriage. If one or both partners are under legal age to marry, then the marriage must be canceled.
- Duress. Someone who enters marriage because of threats or coercion will be able to seek cancellation.
- Fraud. Couples are tricked into marrying other couples, through misunderstanding or concealing important facts about other couples, such as criminal records, pregnancy by other men, or infections with sexually transmitted diseases.
- Bigamy. One couple is married at the time of the wedding whose cancellation is sought.
For some reason for the cancellation, such as concealment of infertility, if after finding a potential basis for the cancellation of couples staying together as a married couple, the reason may be considered forgiven. For underage marriages, cancellations should normally be made while underage couples remain underage, or shortly after the couple reaches the age of majority, or the issue is considered negligible.
State of New York
New York law provides: Wedding incestuous and void (DRL Ã,§5); Void wedding (DRL Ã,§6) Wedding cancellation (DRL Ã,§7).
The cause of action for voidable marriage cancellations in New York State is generally fraud (DRL Ã,§140 (e)). There is another argument. Fraud generally means a deliberate fraud of the Plaintiff by the Defendant to encourage the Plaintiff to marry. A false statement should be substantial, and the Plaintiff's approval for marriage is based on the Defendant's statement. The occurrence of fraud (before marriage), and the discovery of fraud (after marriage) must be proven by corroborating witnesses or other external evidence, even if Defendants plead guilty (DRL Ã,§144). The deadline is three years (not one year). It does not run from the date of marriage, but the date of the deception was found, or it could have been found.
Mass marriages (one in which one party is still married at the second marriage) and incestual marriage are void ab initio (invalid from the beginning). However, there is still a need for an "Action to Declare the Nullity of a Void Marriage" (DRL Ã,§140 (a)), in which the Court, after a reasonable defense, makes the judgment that the marriage is void. There may be effects of marriage such as property settlement and even maintenance if the court feels fair to ask for such assistance.
State of Nevada
In Nevada, qualifications for cancellation include: a nullified marriage (such as a blood relative, bigami), has no consent (such as, underage, drunkenness, madness), or is based on some kind of dishonesty. To file an action based on fraud, you must separate from your partner as soon as you know the fraud.
Provided you get married in Nevada, you do not have to be a Nevada resident to file Nevada's cancellation (or Las Vegas cancellation - they are the same thing). If you marry outside Nevada, you need to set up residence in Nevada before submitting it. You must stay in Nevada for at least six weeks to be considered a resident of Nevada. But again, as long as you get married in Nevada, there is no Nevada residency requirement.
England and Wales
England and Wales provide both canceled and cancelable marriages.
- Void marriage: the couple is very closely related; one couple is under 16 years old; either a married couple or in a civil partnership
- Wedding voidable: non-refinement; no proper agreement to enter marriage (forced marriage); other couples have sexually transmitted diseases at the time of marriage; the woman was pregnant by another man at the time of marriage
Section 13 of the Matrimonial Causes Act of 1973 imposes certain restrictions regarding the possibility of canceling irrevocable marriages, including where the applicant knows "flawed" and the possibility of cancellation, but encourages the respondent to believe that he will not seek cancellation; or where "unfair" for respondents to grant a decision does not apply. There is usually a three-year time limit from the date of marriage to institutionalize the process.
Australia
Since 1975, Australian law only regulates to cancel the marriage. Before 1975, a marriage was canceled and can not be canceled. Today, under the Family Law Act 1975 (Ex.) Cancellation decisions can only be made if the wedding is canceled.
Marriage does not apply if:
- either or both parties are married at that moment (ie bigami)
- the parties are in a forbidden relationship (ie closely related like siblings)
- Parties disobey marriage laws in the jurisdiction in which they are married (note that although marriage contracted abroad is generally considered to apply in Australia, in certain cases, such as when there is a serious contradiction to Australian marriage laws, the wedding is off)
- either or both parties are underage and do not have the necessary consent, (minimum marriage age is 16 years, but 16 and 17 years require special court approval) or
- one or both parties are forced to marry.
French
In France, a country with Roman Catholic tradition, cancellation of features is clearly in law, and can be obtained for various reasons. The law regulates a canceled and irrevocable marriage. (see articles 180 through 202, and articles 144, 145, 146, 146-1, 147, 148, 161, 162, 163 and 164 of the French Civil Code)
- cancel the marriage: forced marriage (not to be confused with the consent obtained under fraud that makes the marriage canceled does not void); underage marriage; bigamy; incestuous marriage; lack of registrar legal competence; and tacit marriage (ie hiding marriage from the public, no witnesses present)
Many cancellations for Henry VIII
Henry VIII of England had three of his six marriages aborted. These marriages were addressed to Catherine of Aragon (arguing that he had married his brother - though this cancellation was not recognized by the Catholic Church); Anne Boleyn (on the grounds that she allegedly seduced her with magic and disloyalty - did not want to execute her legal wife, she offered an easy death if she agreed with the cancellation); and Anne of Cleves (on the basis of non-refinement of the marriage and the fact that she had previously been engaged to someone else). Catherine Howard never canceled her marriage. She had committed adultery with Thomas Culpeper during the marriage, and she had been eye-playing with members of her palace. Because of this, on November 22, 1541, was proclaimed at Hampton Court that he had "lost the honor and title of the Queen," and since then only known as Lady Catherine Howard. Under this he was executed for high treason three months later.
Controversy
The grounds of cancellation with regard to aborted marriages, and indeed the concept of a secret marriage itself, have been controversial in recent years. According to a paper at the Singapore Academy of Law Journal :
- "Where divorce is available to all, it seems somewhat inconsistent to support some groups of married people unhappy by giving them the privilege of choosing whether to end their suffering by means of cancellation or divorce. it is noted that some judges, such as Coomaraswamy J. in Chua Ai Hwa (mw), have noted that some of the reasons for making voidable marriages are likely to be abused by those who expect the court to grant a petition for minimal evidence simply because the petition is not defended. " dd>
See also
- Unauthorized marriage
- Benefit
- Catholic wedding theology
- Divorce
- Nullity (conflict) for discussion of rules relating to wedding cancellation (conflict) in Legal Conflict
- Separation
References
External links
- The Catholic Encyclopedia "Canonical Impediments"
- Catholic Encyclopedia "Wedding Validation"
- New York Household Law, Article 9
Source of the article : Wikipedia
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