§ 140 — Action for judgment declaring nullity of void marriages or annulling voidable marriage

§ 140. Action for judgment declaring nullity of void marriages or\nannulling voidable marriage. (a) Former husband or wife living. An\naction to declare the nullity of a void marriage upon the ground that\nthe former husband or wife of one of the parties was living, the former\nmarriage being in force, may be maintained by either of the parties\nduring the life-time of the other, or by the former husband or wife.\n (b) Party under age of consent. An action to annul a marriage on the\nground that one or both of the parties had not attained the age of legal\nconsent may be maintained by the infant, or by either parent of the\ninfant, or by the guardian of the infant's person; or the court may\nallow the action to be maintained by any person as the next friend of\nthe infant. But a marriage shall not be annulled under this subdivision\nat the suit of a party who was of the age of legal consent when it was\ncontracted, or by a party who for any time after he or she attained that\nage freely cohabited with the other party as husband or wife.\n (c) Party a person with a developmental illness or person with a\nmental illness. An action to annul a marriage on the ground that one of\nthe parties thereto was a person with a developmental disability may be\nmaintained at any time during the life-time of either party by any\nrelative of a person with a developmental disability, who has an\ninterest to avoid the marriage. An action to annul a marriage on the\nground that one of the parties thereto was a person with a mental\nillness may be maintained at any time during the continuance of the\nmental illness, or, after the death of the person with a mental illness\nin that condition, and during the life of the other party to the\nmarriage, by any relative of the person with a mental illness who has an\ninterest to avoid the marriage. Such an action may also be maintained by\nthe person with a mental illness at any time after restoration to a\nsound mind; but in that case, the marriage should not be annulled if it\nappears that the parties freely cohabited as husband and wife after the\nperson with a mental illness was restored to a sound mind. Where one of\nthe parties to a marriage was a person with a mental illness at the time\nof the marriage, an action may also be maintained by the other party at\nany time during the continuance of the mental illness, provided the\nplaintiff did not know of the mental illness at the time of the\nmarriage. Where no relative of the person with a developmental\ndisability or person with a mental illness brings an action to annul the\nmarriage and the person with a mental illness is not restored to sound\nmind, the court may allow an action for that purpose to be maintained at\nany time during the life-time of both the parties to the marriage, by\nany person as the next friend of the person with a mental illness or\nperson with a developmental disability.\n (d) Physical incapacity. An action to annul a marriage on the ground\nthat one of the parties was physically incapable of entering into the\nmarriage state may be maintained by the injured party against the party\nwhose incapacity is alleged; or such an action may be maintained by the\nparty who was incapable against the other party, provided the incapable\nparty was unaware of the incapacity at the time of marriage, or if aware\nof such incapacity, did not know it was incurable. Such an action can be\nmaintained only where an incapacity continues and is incurable, and must\nbe commenced before five years have expired since the marriage.\n (e) Consent by force, duress or fraud. An action to annul a marriage\non the ground that the consent of one of the parties thereto was\nobtained by force or duress may be maintained at any time by the party\nwhose consent was so obtained. An action to annul a marriage on the\nground that the consent of one of the parties thereto was obtained by\nfraud may be maintained by the party whose consent was so obtained\nwithin the limitations of time for enforcing a civil remedy of the civil\npractice law and rules. Any such action may also be maintained during\nthe life-time of the other party by the parent, or the guardian of the\nperson of the party whose consent was so obtained, or by any relative of\nthat party who has an interest to avoid the marriage, provided that in\nan action to annul a marriage on the ground of fraud the limitation\nprescribed in the civil practice law and rules has not run. But a\nmarriage shall not be annulled on the ground of force or duress if it\nappears that, at any time before the commencement of the action, the\nparties thereto voluntarily cohabited as husband and wife; or on the\nground of fraud, if it appears that, at any time before the commencement\nthereof, the parties voluntarily cohabited as husband and wife, with a\nfull knowledge of the facts constituting the fraud.\n (f) Incurable mental illness for five years. An action to annul a\nmarriage upon the ground that one of the parties has been incurably\nmentally ill for a period of five years or more may be maintained by or\non behalf of either of the parties to such marriage.\n