California Court Refuses to Grant Divorce but Nullifies Arranged Marriage on Ground Husband Was Gay
To get a divorce in California, a person must simply tell the judge, in writing or verbally, that there have been irreconcilable differences. But some people prefer a judgment of nullity, which is a determination that the marriage was never valid in the first place.
Specifically, Family Code section 2210 provides grounds to nullify the marriage if consent to the marriage by either party was obtained by fraud. But the fraud must go to the very essence of the marital relationship. The fraud usually must deal with the sexual or procreative aspects of the marriage. In other words, concealing the fact that one is a hoarder, a slob, or has poor hygiene is probably not enough.
But a trial judge did find enough fraud in a California case called F.S. vs. F.B.A., filed this week. In the F.S. case, the wife, who was from California, and the husband, who was from Pakistan, got married in Pakistan. This was an arranged marriage. The parties planned on moving to the United States and Husband had told Wife that he wanted to start a family, but for the first month after the marriage, Husband refused to let Wife live with him and the parties did not have sexual intercourse. Husband said that would occur when they moved to America.
So, Wife left Pakistan and applied for a spousal visa for her husband when she arrived in the United States. Wife would call Husband, but he ignored the calls, simply texting that the parties would get to know each other better when Husband arrived here. Thinking Husband was unhappy, Wife offered to return to Pakistan, but Husband forbade her.
It took another two years for Husband to arrive in the United States. The parties stayed in the same home but not in the same bed. They had sex a couple of times, but Husband told Wife he did not enjoy it. During this same time, Husband used a dating app to meet other men and identified himself as gay. Husband then told Wife he preferred to live separate and five months later moved into his own residence. Husband admitted to marrying Wife so that he could get a green card.
Wife requested a judgment of nullity, but Husband only asked for a divorce. After trial, the judge found, by clear and convincing evidence, that Husband never intended to live with Wife “as husband and wife” and never intended to be in a sexual relationship with her. Instead, Husband’s motivation was to get a green card and that he intended to desert Wife as soon as it was expedient.
Not surprisingly, by a vote of 3-0, the California Court of Appeal upheld the trial judge’s decision.
But as the appeals court stated, getting a marriage nullified is the equivalent of getting a declaration that “’the marriage was void from its inception’ and [the parties have been restored] to the status of unmarried persons”. This is normally difficult to do, especially if the person asking for the nullity is basing the request on fraud. The requesting party must go into court and put on evidence that convinces the judge, by clear and convincing evidence, that there was the specific type of fraud required in these cases.
On the other hand, in California, to simply get a divorce, it is possible to sign papers and not have to appear in front of a judge. So while it may be desirable to wipe one’s hands clean of the whole situation and ask for a nullity for religious reasons or so as to avoid California’s community property laws, it really takes a weird set of facts, like those in the F.S. case, to get a marriage dissolved on the basis of fraud. Even if a person suspects that the “right type of fraud” exists, it will probably be cheaper to just ask for a divorce, rather than having to testify about personal facts. On the other hand, nullity is also possible for other reasons besides fraud. For example, if one person was still married to someone else, the marriage is void. The same applies to people who are too closely related to each other, or to people who were not old enough to enter a marital contract. But even these cases are odd, and unless there is a lot of money at stake (like spousal support) or religious principles are on the line, it’s probably a lot better to just read about a nullity case in the newspaper than to be involved in one.