Marriage can be annulled even after divorce: when the law allows it

Attempting to enter into marriage contrary to the requirements of the law can have serious legal consequences. In certain cases, such a union does not create any rights and obligations of spouses at all, while in others its invalidity is established only after the case is considered by the court. The law clearly defines under what circumstances a marriage is considered invalid and what violations can be grounds for such a decision.

Family legislation of Ukraine establishes mandatory conditions for entering into marriage. If these are not met, the marriage may be declared invalid, which means the absence of legal consequences provided by law for the persons who entered into it.

At the same time, the Family Code of Ukraine distinguishes three categories of such cases. In particular, a marriage:

• is invalid;
• is recognized as invalid by a court decision;
• may be recognized as invalid by a court decision.

According to Article 38 of the Family Code of Ukraine, the grounds for invalidity of marriage are violations of the requirements defined in Articles 22, 24–26 of this Code.

Marriage that is invalid

An invalid marriage is one that:

- is registered with a person who is simultaneously in another registered marriage;

- is registered between persons who are relatives in a direct line of kinship, as well as between full brother and sister;

- is registered with a person who is declared legally incapable.

Upon the application of a person, the state registration authority terminates (recognizes as invalid) the marriage record registered with these persons.

If a marriage is registered with a person who is already married, then in case the previous marriage ends before the termination (recognition as invalid) of the record of the subsequent marriage, the subsequent marriage becomes valid from the moment the previous marriage ends.

The effect of the marriage record is terminated (recognized as invalid) regardless of the death of the persons with whom the marriage was registered (parts one to three of this article), as well as regardless of the dissolution of this marriage (Article 39 of the Code).

Marriage recognized as invalid by a court decision

The court may recognize a marriage as invalid if it establishes that it was entered into without the voluntary consent of one of the spouses. This applies to cases when, during state registration, a person due to a severe mental disorder, state of alcoholic, drug or toxic intoxication could not fully understand the significance of their actions or control them. Also, grounds for recognizing a marriage as invalid include its conclusion under physical or psychological coercion.

In addition, the court may annul a marriage if it recognizes it as fictitious. This refers to situations when one or both spouses registered the marriage without the intention to create a family, but only to achieve other goals unrelated to family relations.

At the same time, even in the presence of such circumstances, the marriage is not always recognized as invalid. If during the case consideration the court establishes that the reasons indicating the absence of voluntary consent or unwillingness to create a family have ceased, it may refuse to satisfy the claim to recognize the marriage as invalid. This is provided for in Article 40 of the Family Code of Ukraine.

Marriage that may be recognized as invalid by a court decision

A marriage may be recognized as invalid by a court decision if it was registered:

- between an adopter and the adopted child in violation of the requirements established by part five of Article 26 of this Code;

- between first cousins; between aunt, uncle and nephew, niece;

- with a person who concealed a serious illness or a disease dangerous to the other spouse and/or their descendants;

- with a person who has not reached marriageable age and was not granted the right to marry.

The Ministry of Justice notes that when resolving a case on recognizing a marriage as invalid, the court takes into account the extent to which the marriage violated the rights and interests of the person, the duration of cohabitation of the spouses, the nature of their relationship, as well as other circumstances of significant importance.

A marriage cannot be recognized as invalid in case of the wife’s pregnancy or the birth of a child to persons mentioned in points 1, 2, 4 of part one of this article, or if the person who had not reached marriageable age reached it or was granted the right to marry (Article 41 of the Code).

Persons entitled to file a claim to recognize a marriage as invalid

The right to file a claim to recognize a marriage as invalid belongs to:

- the wife or husband;

- parents, guardian, custodian of a child, guardian of a legally incapable person;

- prosecutor, guardianship and custody authority, if the rights and interests of a child, a person declared legally incapable, or a person whose legal capacity is limited need protection;

- other persons whose rights were violated in connection with the registration of this marriage (Article 42 of the Code).

Recognition of marriage as invalid after its termination

Dissolution of marriage, death of the wife or husband is not an obstacle to recognizing the marriage as invalid.

If the marriage was dissolved by court decision, a claim to recognize it as invalid may be filed only after the annulment of the court decision on the dissolution of marriage (Article 43 of the Code).

The time from which the marriage is invalid

In cases provided for in Articles 39–41 of this Code, the marriage is invalid from the day of its state registration (Article 44 of the Code).

Legal consequences of marriage invalidity

An invalid marriage (Article 39 of this Code), as well as a marriage recognized as invalid by a court decision, does not give rise to rights and obligations of spouses between the persons who registered it, as well as rights and obligations established for spouses by other laws of Ukraine.

If during an invalid marriage the persons acquired property, it is considered to belong to them as joint partial ownership.

The size of each share is determined according to their participation in acquiring this property by their labor and funds.

If a person received alimony from the one with whom they were in an invalid marriage, the amount of alimony paid is considered received without sufficient legal grounds and is subject to return in accordance with the Civil Code of Ukraine, but not more than for the last three years.

A person who settled in the residential premises of another person in connection with registration of an invalid marriage did not acquire the right to reside there and may be evicted.

A person who changed their surname due to registration of an invalid marriage is considered to bear this surname without sufficient legal grounds.

The legal consequences established by parts two to five of this article apply to a person who knew about the obstacles to marriage registration and concealed them from the other party and/or from the state civil registration authority (Article 45 of the Code).

Special legal consequences of marriage invalidity

If a person at the time of marriage did not know and could not have known about the existence of obstacles to its registration, the law protects their rights. In this case, they may claim division of property acquired during such marriage according to the rules applied to joint marital property. They also retain the right to reside in the housing where they moved in connection with the marriage, receive alimony in cases provided by the Family Code of Ukraine, and use the surname they chose during marriage registration.

At the same time, recognition of marriage as invalid in no way affects the rights of a child born in such marriage, as well as the mutual rights and obligations of the parents regarding the child.

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