Void and Voidable Marriages
Void and Voidable Marriages Distinguished
Depending on the circumstances, invalid marriages are either void or voidable. A void marriage is an absolute nullity, and no judgment or decree of nullity is necessary to restore the parties to their original rights. Nevertheless, for the sake of the good order of society and for the peace of mind of all persons concerned, it is best that a judicial determination of the invalidity of the marriage, or annulment, be obtained. The issue of invalidity of a void marriage may be raised in any court, between any parties, and either during the lifetime of the parties to the marriage or after their deaths. A void marriage is often called a putative marriage, and the parties are called putative spouses.
A marriage is considered voidable rather than void, although prohibited by law, if it is possible for the parties to ratify it when the impediment to the validity of the marriage is removed. 6 A voidable marriage is valid and binding on the parties until annulled by a court of competent jurisdiction. 7 It may be attacked only in a direct proceeding during the lives of the parties. Unless and until the marriage is annulled, the parties cannot marry again unless divorced. In addition, their children are considered legitimate, and the survivor is entitled to the rights of husband or wife. On the death of either party, the marriage is considered valid from its inception. 8 Thus, a voidable marriage cannot be attacked after the death of one of the spouses. 9
If one of the parties to a marriage has a living, undivorced spouse by a prior marriage, a subsequent marriage is bigamous and void. A bigamous marriage is void even if there had been an interlocutory judgment of divorce of the previous marriage.
A bigamous marriage may, alternatively, be annulled on the basis of the married party’s fraudulent misrepresentation of his or her capacity to marry. A person is guilty of fraud if he or she marries while still the lawful spouse of someone else. This fraud consists of the implied representation that the person was single when contracting the marriage. It continues as long as the party’s silence on the matter of the previous marriage continues, and it affects all transactions that are based on the validity of the marriage. Thus, for example, a property transaction between husband and wife that is entered into with the rights and obligations of the marital partners in mind may be made the subject of an accounting by the defrauding spouse.
The married party cannot defend against a claim of fraud by asserting the belief that the earlier spouse obtained a divorce. The spouse still married to another has the affirmative duty to advise the other party, before their marriage, about the earlier marriage and about the facts that lead him or her to conclude that a divorce exists. Although a marriage obtained by fraud is generally held to be voidable rather than void, a bigamous marriage is void, despite the element of fraud.
 Insanity, Intoxication, and Other Incapacity
In order to enter into a valid marriage, both parties must have the mental and physical capacity to contract. The mental capacity required is a capacity to understand the nature of the contract and the duties and responsibilities it creates. The capacity to contract marriage may be impaired, for example, by insanity or by intoxication. A marriage entered into with an idiot, an insane person, or any other person who lacks the mental capacity to enter into a marriage, is void. The party who lacks the mental capacity may obtain an annulment of the marriage unless that person has affirmed the marriage during a lucid interval or on regaining mental competency.
The requisite mental capacity is required only at the time the marriage is actually contracted; insanity or intoxication occurring before or during the marriage is irrelevant. For example, an annulment was held properly denied when the woman was found competent to undertake the marriage relation when the marriage took place, even though she was later committed to the state hospital.
If the impaired party is not actually insane, a weakened mental condition may nevertheless, if combined with fraud on the part of the other party, amount to grounds for declaring a marriage void.
 Homosexual and Transsexual Persons
In Florida, persons of the same sex may not marry. The Florida statutes that prohibit same-sex marriage render such marriages void.
Not only does Florida statutory law prohibit marriage between homosexual persons, it also prohibits marriage between a postoperative transsexual person and a person of the gender that was attributed to the transsexual at birth. Thus, a marriage entered into between a postoperative transsexual to a person of his or her assigned gender at birth is void.
A marriage procured by fraud is voidable. A party who has been the victim of a marriage ceremony procured by the fraud and deception of the other party, where the marriage has not been consummated by cohabitation, may maintain a suit and procure a decree of annulment of the marriage, provided the victim takes action before engaging in any condonation of the fraud or any affirmation of the marriage.
One who has become a party to a marriage ceremony by fraud of the other party may not secure an annulment if the parties have subsequently engaged in sexual intercourse. That is, the lack of sexual consummation is a prerequisite to the annulment of a marriage on the ground of fraud, and it is the burden of the party seeking the annulment to prove the fact of the absence of consummation.
To constitute fraud sufficient to justify an annulment of a marriage, the defrauding party, by word or act, must have misrepresented a specific material fact for the purpose of inducing the other party to enter the marriage. The party either must have known the actual facts or must have been in possession of knowledge sufficient to have put a person of ordinary and reasonable prudence on notice of the facts. It is also necessary that the other party actually rely on the misrepresentation by acting on it.
A person may commit fraud by inducing a spouse into marriage through misrepresentation. For example, if a person represents that he or she wishes to enter into the relationship in order to produce a family, that person commits fraud if in actuality he or she intends not to have children but rather enters the marriage to gain companionship and security. It would not be fraud, however, if that person intended to have a family before the marriage and later changed his or her mind.
It is not fraud that would warrant the annulment of a sexually consummated marriage for a woman to persuade a man with whom she has had sexual intercourse to marry her by falsely representing to him that she is pregnant by him. Similarly, it has been held that a husband’s failure to inform his spouse of a rape conviction and his status as a parolee was not sufficient fraud, in itself, to authorize the annulment of the marriage when the marriage had been consummated by the parties’ living together and having sexual intercourse for several months before the wife became aware of the conviction.
 Duress and Undue Influence
A marriage procured as a result of an improper or unlawful act of another that destroys a party’s volition is voidable. When an annulment is sought on the ground of duress, it must be shown that the act or acts dominated the entire transaction so as to prevent the one influenced from acting as a free agent in entering the marriage. Duress does not exist if the party freely consents to the marriage at some stage prior to the ceremony. For example, duress has not been found even though threats were made against the man when the marriage ceremony took place in the absence of an immediate threat or the presence of a threatening person.
Closely related to the concept of duress is that of undue influence. “Undue influence” consists of persuasion or pressure that is exerted by one predisposed to applying such influence and who has an opportunity to do so, on another who is susceptible to the influence, culminating in an unnatural result. As with a marriage that is entered into under duress, if the consent of one of the parties to the marriage is obtained by undue influence, the marriage is voidable.
The marriage of parties who are prohibited from marrying because of consanguinity is voidable.
Impotence renders a marriage voidable. Impotence has been defined as the absence of the power to copulate. If the power to copulate is present, the possessor is not impotent even though he or she may not have the power to procreate.
Other Invalidating Factors
To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purpose of such contracts. That is, the marriage must be entered into for the purpose of preserving the relationship of husband and wife as the foundational unit of society, thereby promoting the general welfare. Marriages that are entered into for other purposes may be found to be void or voidable. For example, a marriage entered into between a woman and her son-in-law to ensure her inheritance from her deceased husband has been held invalid as foreign to the purpose of marriage.
A marriage that is entered into for the sake of an unborn child and is never consummated by cohabitation is voidable and may be annulled by either party. Such a marriage is contrary to public policy since it does not promote the preservation of the husband-wife relationship. Thus, the court has held it to be error to deny an annulment of an unconsummated marriage between a pregnant teenager and the older brother of the alleged father where the families of the expectant couple arranged for the marriage to prevent the child from being born out of wedlock. A marriage for the sake of an unborn child is not voidable, however, when entered into between the mother and the reputed father of the child, unless the marriage was procured by fraud.