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Should a husband's misrepresentation to his once and future wife that he is terminally ill provide grounds for her to annul the marriage? The answer to this question turns on the legal definition of fraud in the annulment context, an issue explored in the recent ruling of a Colorado appellate court in Farr v. Farr.
In Part One of this series, I discussed the traditional approach to defining fraud as a ground for annulment, which requires that the misrepresentation relate to the "essentials of the marriage" – some aspect of marriage that is fundamentally important to any marriage, not just to the particular spouse seeking an annulment.
In this Part, I will argue that there has been at least a subtle shift in the doctrine in some jurisdictions away from this one-size-fits-all approach to a more individualized approach. Under this more modern approach, a court might ask whether a misrepresentation related to something that was fundamental to this marriage, rather than to marriage in general. This type of approach treats marriage more like other contracts – where private parties define the terms of the deal, as well as the circumstances under which they are willing to enter it at all.
The Traditional Approach: Still the Law in Some Jurisdictions
Although, as I'll argue below, the Farr case illustrates a modern trend towards a looser definition of fraud, there are still jurisdictions that follow the traditional "essentials of the marriage" approach. Indeed, appellate courts in several states have strongly reaffirmed this approach in recent cases.
In a 2005 case, Meagher v. Maleki, an appellate court in California overturned an annulment because the fraud alleged and proven did not go "to the very essence of marriage". The trial court found that the husband had misrepresented his financial status and deceived her in connection with a joint business venture. He did not challenge those findings on appeal, but argued, successfully, that misrepresentations regarding financial matters could not provide the basis for annulment.
In siding with the defrauding husband, the court made clear that annulment is not a remedy for protecting individualized expectations of spouses. Rather, proven fraud will not justify an annulment unless it "relates to a matter which the state deems vital to the marriage relationship." (Emphasis added.) And the state's interest in marriage has been restricted to protecting its sexual and procreative aspects. Thus, the court concluded, "In the absence of fraud involving the party's intentions or abilities with respect to the sexual or procreative aspect of marriage, the long-standing rule is that neither party ‘may question the validity of the marriage upon the ground of reliance upon the express or implied representations of the other with respect to such matters as character, habits, chastity, business or social standing, financial worth of prospects, or matters of similar nature.'" (The California Supreme Court declined the wife's petition for review.)
A Shift Towards a Subjective Definition of Fraud
While there are other cases like Meagher, in which modern courts defend the traditional approach, there is a detectable shift towards a looser standard. Courts in some states have begun to apply a subjective, rather than an objective, test for fraud. They ask, in other words, whether the truth would have been a deal-breaker for the particular marriage in question – Would the plaintiff-spouse have refused to go forward with the marriage had he or she known the truth? – rather than whether the fraud related to some matter that is essential to every marriage.
For example, in Wolfe v. Wolfe, a 1979 case from Illinois, the wife lied by saying that she had been widowed, when, in actuality, she and her prior husband had divorced. (Her lie was proven, among other ways, by the surprising appearance of her supposedly dead ex-husband in the proceeding to annul her subsequent marriage.) She had gone so far as to manufacture a fake death certificate because she knew her second husband would not have gone through with the marriage otherwise because of his strict adherence to Catholicism and its views on divorce.
The wife filed for divorce, but the husband filed a counterclaim for annulment based on fraud. The Illinois Supreme Court granted the annulment, even though the parties had been married for several years and had a child together. In evaluating the fraud claim, the court did purport to apply the traditional "essentials" test, but defined it in a radically different way. "Essentials," the court wrote, "cannot be expressly delineated, for what is essential to one marriage may not be equally significant to another." The proper question, in this court's view, is whether "the marriage would not have occurred but for the fraud." This turns the traditional definition of marriage fraud on its head.
The Wolfe court did not throw open the gates on fraud completely. It insisted that misrepresentations as to "fortune, character, and social standing" still cannot be the basis for annulling a marriage. But because the husband's insistence that he could not overlook his wife's misrepresentation stemmed from a genuinely held religious belief, rather than a "mere subjective, personal aversion," the court found the "essentials" test satisfied.
As in Wolfe, modern courts have been more willing to annul marriages for misrepresentations outside of the traditional "essentials" like sex and procreation. Spouses in some jurisdictions have the opportunity to insist on honesty with respect to more individualized, and often less concrete expectations for marriage. This is consistent with a broader trend away from marriage as a fixed status, defined and regulated by the state, to a contract between two individuals.
Colorado's Marriage Law and the Case of Farr v. Farr
Let's return now to the recent ruling in Farr v. Farr, with which this series of columns began. Recall that the husband misrepresented to his ex-wife that he was suffering a terminal illness, inducing her agreement to remarry him so he would not die alone.
In Colorado—the state in which the Farrs' marriage, divorce, remarriage and annulment all took place—a marriage can be dissolved either by divorce or annulment. To obtain a divorce, both parties must swear that that the marriage is "irretrievably broken"; if either party denies it, the court must make a finding that the marriage is nonetheless "irretrievably broken" before a divorce can be granted.
Colorado's annulment law is largely typical of the law that exists in most states regarding annulment, though Colorado's law is somewhat broader and more detailed than the norm in its enumeration of grounds.
More specifically, Colorado law holds as follows: Marriages that are bigamous (that is, one spouse already had a living spouse when the marriage occurred) or incestuous (that is, contracted between an ancestor and descendant, a brother and sister, an aunt and nephew, or uncle and niece) are void as a matter of law, and do not need to be annulled. In addition, a marriage can be annulled by court decree if: (a) either party lacked the ability to consent because of mental incapacity or the influence of alcohol or drugs; (b) either party lacked the physical capacity to consummate the marriage and that condition was unknown to the other party; (c) either party was under the legal age for marriage; (d) either party entered into the marriage based upon a fraudulent act or representation of the other that "goes to the essence of the marriage"; (e) either party entered into the marriage under duress caused by the other party or a third party; or (f) either party entered into the marriage "as a jest or dare."
In her cross-complaint for annulment, Joy Farr cited subsection (d) of the annulment law, alleging that Larry defrauded her into remarrying him by misrepresenting the seriousness of his illness. But does such a misrepresentation go, as the statute requires, "to the essence of the marriage"?
Farr v. Farr: A Modern Approach to Annulments Based on Fraud?
After a hearing, the trial court presiding over the Farr case dismissed Larry Farr's petition for divorce and granted Joy Farr's petition for annulment. Larry appealed, but lost again in round two. He unsuccessfully argued that Joy had failed to file a timely notice of appeal. He also argued that the trial court had applied too low a standard of proof, but the appellate court disagreed.
Joy testified at the hearing that Larry had told her he had a serious illness, myelodysplastic syndrome, and would die within a few years. He brought medical records to show to Joy, in order to back up his claim, although the records themselves showed that the illness had not progressed to a terminal form. Despite that fact, according to her testimony, he had "interpreted" the records for her and said his prognosis was dire. She testified that she had agreed to marry him only so that he would not have to die alone.
Yet both Joy and the couple's son testified that, after the remarriage took place, Larry did not appear to be ill. He signed an insurance form a year later indicating that he was in good health, and more recent medical records seemed to back that up. Larry denied many of these allegations, but no expert witness was brought in to opine on whether his illness ever was – or ever could have been thought by him or his doctor to be – terminal. The trial court, however, concluded that Joy was more credible than Larry, and that her story was more likely the truth. Accordingly, the court ruled that Joy had been defrauded into remarrying Larry based on his false representations about his imminent death.
Larry also argued on appeal that the trial court had failed to consider whether the misrepresentation about illness went to "the essence of the marriage." The appellate court, however, concluded that it was sufficient for the trial court to find that (i) there was a misrepresentation; and (ii) that the wife relied on that misrepresentation in deciding to remarry. And the court concluded that "these findings, taking together, are adequate to imply that the court found that the misrepresentation went to the essence of the marriage. . . ."
Although Larry might have made a good argument that a spouse's life expectancy does not "go to the essence of the marriage," the court was struck by the fact that he "cites no case law specifically supporting this contention." And indeed, there is, it appears, little or no caselaw in Colorado on the proper interpretation of the meaning of "fraud" in annulment cases. Larry might, however, have drawn upon cases from other states that provide ample support – like the Meagher case discussed above – for a more restrictive understanding of what lies at the essence of marriage.
A Mystery: Why Did Ms. Farr Fight for an Annulment, Rather than a Divorce?
It is not clear in the Farr case why the wife was so insistent that the marriage be annulled, rather than dissolved via divorce. After all, the couple had already been divorced once from one another. Thus, if she had religious reasons for preferring an annulment, then her prior divorce would already have marred her record (unless her beliefs changed in the interim).
Moreover, under Colorado law, the consequences of marital dissolution are identical regardless of whether it is accomplished by annulment or divorce. The parties have the same rights vis-á-vis property division or spousal support, regardless of the grounds for dissolution. And, in this particular case, Joy and Larry agreed to all those matters by stipulation.
Their only child was a grown man and thus was unlikely to be affected by his parents' second marital dissolution, no matter the mechanism. Thus, the only fight came down to what the decree of dissolution was called: a divorce, or an annulment. Ultimately, Joy's insistence on an annulment may have come down simply to an attempt to set the record straight, by showing she had been tricked into a marriage she did not desire.
As noted above, the appellate opinion in this case is all but devoid of analysis about the proper interpretation of fraud in the annulment context. Yet the court's conclusion is in keeping with the modern trend to treat "fraud" as a broad remedy for situations in which individualized expectations for marriage are defeated by lies up front, whether or not such expectations fit into standard statutory categories. In the modern era, it is partly up to the couple themselves to decide what conditions were essential to their marriage. Still, it seems ironic to treat as an essential condition to a marriage the expectation of one spouse's imminent death.