Marriage annulment: can you intervene as a child?

What is an annulment?

In the above-mentioned case, you can try to have the marriage annulled by the court. An annulment is a sanction that means the marriage is deemed to have never existed. The judge can impose this sanction if certain significant impediments to marriage have been violated. However, it is important to note that a marriage is never automatically null and void; this must always be declared by a judge.

Impediments to marriage can be divided into two groups: prohibitive impediments to marriage and destructive impediments to marriage.

Forbidding and destructive impediments to marriage.

The prohibitive impediments to marriage prevent marriage. Failure to comply with these conditions will not affect the validity of the marriage. Examples include failure to observe the waiting period between the declaration of marriage and the solemnization of the marriage, or the absence of the documents required for the marriage ceremony. These impediments to marriage will therefore not result in annulment.

The destructive impediments to marriage will, however, affect the validity of the marriage if they are not complied with. The marriage becomes invalid, and there are two types of nullity: relative nullity and absolute nullity.

The general rule is absolute nullity.

In the case of absolute nullity (also called absolute nullity), the marriage is annulled. The annulment therefore also has consequences for the past. Failure to meet the following nine conditions results in this nullity:

• Lack of consent. Examples include: marrying while intoxicated, sham marriages, and marrying a person with dementia.
• The existence of a previous undissolved marriage (prohibition of bigamy!). One can only be married to one person at a time.
• Marriage performed by an unauthorized person, such as a consul or a priest.
• A prohibited marriage between certain relatives.
• Failure to comply with the minimum age requirement.
• Defective consent, violence, or threats.
• A non-public marriage (clandestine marriages).
• Failure to register the marriage.
• The registrar was not authorized to perform the marriage.

In all these cases, the claim for annulment is time-barred. Failure to comply with the minimum age requirement is an exception. Any interested party, including the Public Prosecution Service, can file this claim. The judge is obligated to declare the case null and void.

The exception is relative nullity.

In the case of relative nullity, the marriage is also dissolved retroactively. Therefore, the dissolution applies to both the future and the past. There are two grounds for relative nullity: the defect of intention (mistake) and the incapacity of a protected adult.

These grounds for nullity are subject to prescription. Only persons protected by the grounds for nullity can invoke them in court. Moreover, this ground for nullity is subject to confirmation. This means it can no longer be invoked. For example, mistake will be confirmed if the spouses continue to live together for six months after the discovery of the mistake.

Can I request an annulment myself?

As a general rule, all interested parties can request the annulment of the marriage. The following persons are considered interested parties:

• Each spouse themselves
• The spouse of one of the spouses (in the case of bigamy)
• The ascendants of one of the spouses (parents, grandparents, etc.)
• The children of one of the spouses and collateral relatives (brothers, sisters, etc.), but only insofar as they have an acquired and current patrimonial interest at the time of the annulment
• Other persons with a patrimonial interest (e.g., creditors, a former spouse of one of the spouses who is still entitled to maintenance payments, etc.)
• The administrator of one of the spouses
• The public prosecutor

In this specific case, as your mother's child, you can request the annulment, provided you have an acquired and current patrimonial interest. This will often be the case, as you are entitled to inherit upon your mother's death. Since the marriage between your mother and her husband may have adverse property law consequences for you, there is an acquired and current property law interest.

Which court should I turn to for annulment?

The general rule is that the application for marriage annulment is brought before the family court as a legal action. You can choose to appeal to the family court of the couple's place of residence or the family court of the last marital residence.

However, if the criminal court finds a violation of a relevant criminal provision, the criminal court can also immediately declare the marriage null and void. This is the case, for example, if you notice that medical certificates concerning the mental state of one of the spouses have been tampered with. In that situation, it may be considered forgery, and the criminal court can immediately declare the marriage null and void.

Within what timeframe should I file the application for annulment?

De vordering tot nietigverklaring van het huwelijk is een vordering van staat en is bijgevolg niet aan een verjaringstermijn onderworpen. De vordering zal met andere woorden ten allen tijde kunnen worden ingesteld. 

Een uitzondering hierop vormt het geval waarin een der gehuwden het huwelijk is aangegaan op het ogenblik dat hij/zij onbekwaam was en daar geen machtiging vanwege de vrederechter voor heeft verkregen. In dat geval verjaart de vordering na een verloop van vijf jaar vanaf het tijdstip dat de onbekwame persoon van het betwiste huwelijk kennis heeft gekregen.