Annulment (marriage)

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The marriage annulment is a court-ordered termination of a marriage due to faulty marriage . It is to be distinguished from divorce , which can also be ordered by the court by a drafting order upon application. Aside from divorce and the death of one of the spouses, annulment is the third reason by which an effective marriage can end. The annulled marriage is considered to have been legal (existent) in spite of its contestability and must be distinguished from a non-marriage , in which no effective marriage was created.

Germany

According to §§ 1313 ff. BGB , an effective marriage can be annulled in Germany under certain conditions. The marriage is annulled by a legal decision of the responsible family court . It replaced the 1 July 1998 marriage annulment under the former rules in §§ 16-26 of the Marriage Act (EheG).

Reasons for cancellation

The reasons for annulment of a marriage are finally listed in § 1314 BGB . First of all:

Furthermore, reasons for cancellation are:

With the entry into force of the Act to Combat Child Marriage on July 22, 2017, marriage was set at 18 years in the interests of the best interests of the child ; Previously possible exceptions for minors who had reached the age of 16 have been abolished. Since then, a marriage has usually been annulled by a judicial decision if one of the spouses is between 16 and 18 years old at the time of the marriage. If he is younger than 16 years, the marriage is completely ineffective and counts as a non-marriage from the start , which does not have to be annulled by a court order. The regulations also apply to marriages that have been concluded effectively and irrevocably under foreign law. There are transitional provisions for old cases.

Exclusion of marriage annulment

The marriage annulment is according to § 1315 BGB u. a. excluded if one or both spouses have given outside evidence that they want to continue the marriage despite the possibility of annulment (confirmation).

Eligibility to apply

The application for annulment of the marriage can primarily be submitted by the affected spouse, in the case of a double marriage also by the spouse from the previous marriage. In the event of incapacity , the legal representative ( supervisor ) makes the application. In accordance with Section 125 (2) of the FamFG, he / she needs approval from the family or care court .

The registry office can also apply for annulment in all cases. The application is at the discretion of the authority, but is restricted by law by Section 1316 (3) BGB, according to which such an application is inadmissible if this would mean severe hardship for the spouses or their children. The existence of severe hardship can be fully checked by the courts.

Application deadline

In accordance with Section 1317 of the German Civil Code (BGB), there is an application period of one year from discovery for the reasons for cancellation of the error and deception. In the event of a threat, the application deadline is three years from the end of the predicament caused by the unlawful threat.

Legal consequences

The marital legal relationship ends when the decision becomes final, i.e. not with effect for the past ( ex tunc ), but only with effect for the future ( ex nunc ). A post-marital legal relationship can follow. The details, in particular on maintenance and the distribution of household items, are regulated in Section 1318 of the  German Civil Code.

Austria

In Austrian law, the annulment of marriage is regulated in Sections 35 to 45 of the Marriage Act.

Reasons for cancellation

The marriage law provides for six reasons for annulment. These are

  • the lack of consent of the legal representative ( § 35 ),
  • the error about the marriage or about the person of the other spouse ( Section 36 ),
  • the error about circumstances affecting the person of the other spouse ( section 37 ),
  • malicious deception ( Section 38 ),
  • the threat ( section 37 ) and
  • remarriage in the event of the death of a survivor ( section 44 ).

Cancellation due to insufficient consent of the legal representative

According to § 3 EheG, minors or persons with other limited legal capacity require the consent of their legal representative and of the person who is entitled to their care and upbringing to marry. If the consent is refused without good reason, the guardianship court can replace it upon application by the minor (Section 3 (3) EheG). If the marriage is nevertheless concluded, contrary to this requirement, the legal representative or, after reaching the age of majority or the cessation of limited legal capacity, the affected spouse can request the annulment of the marriage. However, if the legal representative gives his approval subsequently, cancellation is excluded. This also applies if the "spouse, after he has become legally competent, has given notice that he wants to continue the marriage" (Section 35 (2) EheG, so-called confirmation ).

Cancellation due to an error

The marriage law allows the annulment of a closed marriage due to certain errors . A spouse can request annulment of the marriage if he is at the time of the marriage

  • was mistaken that it was a marriage (the spouse did not know that he was entering into a marriage)
  • knew that he was entering into a marriage, but was wrong about the declaration of marriage (e.g. the spouse mistakenly gave his "yes" word) or
  • was wrong about the person of the other spouse (e.g. one spouse unintentionally marries the twin of the other).

Here too, the confirmation excludes the right to cancel.

In addition, a spouse can apply for annulment if he / she is mistaken about circumstances affecting the other spouse. These circumstances must be so serious that they would have deterred the spouse from marrying "if they had known the facts and had properly assessed the nature of the marriage". For example, failure to inform about a grave, dishonorable, criminal past entitles them to annul the marriage. Not only does the confirmation exclude the right of cancellation here; annulment is also excluded if the “request for annulment of the marriage with regard to the previous structure of the marital life of the spouses does not appear morally justified” (Section 37 (2) EheG, so-called probation ).

Cancellation due to other lack of will

If one spouse fraudulently deceives the other, for example through the use of cunning, about circumstances "which would have prevented him from entering into marriage if he had known the facts and if the nature of the marriage had been properly assessed" (Section 38 (1) EheG), so he can desire the annulment of the marriage. If the deception was caused by a third party and without the knowledge of one of the spouses, cancellation - as with confirmation - is excluded (Section 38 (2) EheG). The deception about financial circumstances does not qualify as fraudulent deception (Section 38 (3) EheG). A marriage deception fulfills the requirements of Section 193 (2) StGB and is therefore punishable.

The marriage can also be annulled if one spouse bends the will of the other, for example by placing him in a predicament (Section 39 (1) EheG). Confirmation of the marriage is also possible here (Section 39 (2) EheG). The compulsion to get married, however, fulfills the requirements of Section 106a (1) StGB and is therefore punishable.

Cancellation after remarriage in the event of a declaration of death

If the spouse marries someone who has been declared dead and if he survived the declaration of death, the new marriage dissolves the old one (Section 43 (2) EheG). If the previous spouse subsequently learns of the survival of the person who was declared dead, he can request the annulment of the new marriage (Section 44 (1) EheG). If he makes use of this right, he can only enter into a new marriage with the former spouse as long as he is still alive (Section 44 2 EheG).

Repeal Procedure

The annulment procedure is to be conducted as a contentious procedure. According to Section 49 (2) Z 2a JN, the district courts are responsible for the annulment proceedings. The local jurisdiction is based on § 76 JN. The action for annulment must be brought within a year of knowledge of the error, deception, or the elimination of the predicament, whereby there are protective provisions in favor of spouses who are incapable of doing business as well as period restrictions ( Section 40 EheG, for remarriage in the event of a declaration of death, Section 19 1. DVOEheG applies). The confused, deceived or threatened spouse is entitled to sue. For information on how to conduct legal proceedings in relation to minors, see section Cancellation due to lack of consent from the legal representative . The court recognizes the right to annulment by means of a judgment ( Section 390 ZPO).

Legal consequences of cancellation

The legal consequences of the marriage annulment are the same as those of the divorce, whereby "the spouse who knew the reason for annulment when the marriage was entered into is to be regarded as guilty" or "by whom or with whose knowledge the deception or threat was committed" ( Section 42 EheG). In the event of a declaration of death, negligence in the annulment due to remarriage exists if the spouse "knew at the time of the marriage that the spouse declared dead had survived the declaration of death" ( Section 19 (2) 1st DVOEheG). If both a petition for annulment and a petition for divorce are processed in the same procedure and both petitions are justified, then only the annulment can be recognized. Any culpability for divorce is to be included in the annulment judgment ( § 18 1. DVOEheG). The annulment of the marriage takes place according to § 34 EheG with the legal force of the annulment judgment and acts ex nunc , that means, it has no retroactive effect, but only works for the future.

Individual evidence

  1. ^ Law against child marriage: Married from 18 years. Federal Government, July 22, 2017, accessed on September 2, 2017 .
  2. BGH, April 11, 2012, AZ XII ZR 99/10
  3. ^ Monika Hinteregger: Family law . 6th edition. Verlag Österreich, Vienna 2013, ISBN 978-3-7046-6396-2 , p. 38 .
  4. ^ Monika Hinteregger: Family law . 6th edition. Verlag Österreich, Vienna 2013, ISBN 978-3-7046-6396-2 , p. 38 .
  5. OGH 4 Ob 1588/94; 9 Ob 29 / 01g. Legal clause RS0056241 .
  6. ^ Monika Hinteregger: Family law . 6th edition. Verlag Österreich, Vienna 2013, ISBN 978-3-7046-6396-2 , p. 38 .
  7. The § 93 para. 1 AußStrG looks for divorce in agreement, but not for the cancellation method, a method other than litigation before.
  8. ^ Monika Hinteregger: Family law . 6th edition. Verlag Österreich, Vienna 2013, ISBN 978-3-7046-6396-2 , p. 39 .
  9. ^ Monika Hinteregger: Family law . 6th edition. Verlag Österreich, Vienna 2013, ISBN 978-3-7046-6396-2 , p. 37 .