Can I file a nullity of marriage lawsuit?

Hello. This is an attorney experienced in divorce cases at Daeryun Law LLC.

When reviewing the case based on the content of your question, in your mother's situation, filing a nullity of marriage lawsuit is entirely possible.

Under the Civil Act, a marriage is formed only when there is a 'meeting of the parties' intentions to marry', and the matter you described falls under a ground for nullity of marriage in which that requirement is not met.

A marriage is formed only when both parties voluntarily and clearly express their intention to marry, that is, their intention to accept each other as spouses.

However, if your mother was, due to Lou Gehrig's disease, in a state where verbal expression or judgment was impossible for a long period, it must be regarded that at the time of the marriage registration she lacked the very capacity to express an 'intention to marry'.

This corresponds, as a legal matter, to a case where the marriage was never formed from the outset, that is, to nullity of marriage.

Therefore, you, who are the child, can file a nullity of marriage lawsuit as a lineal ascendant.

Under Article 817 of the Civil Act and Article 2 of the Family Litigation Act, a nullity of marriage lawsuit falls under the jurisdiction of the family court, and it may be filed not only by the parties to the marriage but also by their lineal ascendants and descendants, relatives within the fourth degree, and a prosecutor.

In other words, a procedure exists whereby a family member, rather than your mother herself, can contest the legal validity on her behalf.

In such a nullity of marriage lawsuit, proving the 'absence of an intention to marry' is the key, so you must secure the following materials.

① Your mother's medical certificate and neurological opinion (clearly stating the inability to communicate and the lack of judgment)
② Hospitalization records and caregiving records at the time of the marriage registration
③ Confirmation of who prepared and who submitted the marriage registration form
④ Written statements and testimony of people around her
⑤ Circumstances of property transfer after the marriage (changes in real estate title, withdrawals of deposits, etc.)

Through such evidence, the court will recognize that, at the time of the marriage registration, your mother was in a state where she could not make normal judgments or express her intentions.

A nullity of marriage lawsuit corresponds to 'a case where the marriage was never formed from the outset', so it is different in nature from a marriage annulment lawsuit.

A marriage annulment lawsuit is a procedure in which, where a marriage was once formed but there is a defect such as fraud or duress in the process, that is, where the motive for the marriage was formed by deception or coercion, the marriage is extinguished prospectively by the court's judgment.

In contrast, a nullity of marriage lawsuit is a procedure that treats the marriage as never having existed in law from the outset because the essential requirements of marriage were lacking.

To summarize, nullity of marriage corresponds to a case where there was no intention to marry at all (loss of mental capacity, false registration, etc.), while annulment of marriage corresponds to a case where there was an intention to marry but there was a serious defect in the process (fraud, duress, etc.).

In this case, if the marriage registration was made while your mother had lost her mental capacity due to Lou Gehrig's disease, this constitutes a ground for nullity of marriage, and you, who are the child, can file the lawsuit.

In addition, if the other party, knowing your mother's condition, took advantage of it to have property such as real estate or deposits transferred to them, the crime of fraud and the like may also become an issue.

Therefore, it is important to promptly pursue, in parallel with the nullity of marriage lawsuit, a criminal complaint and property preservation measures (provisional attachment and a provisional injunction prohibiting disposal).

You should restore your mother's legal status through a confirmation of the nullity of the marriage registration and, at the same time, carry out preservation measures for the property that was unjustly transferred.

Since such a case requires complex proof involving medical records, administrative documents, and testimony, it is advisable to organize the evidence from the early stages together with an attorney experienced in divorce cases.

You may wish to promptly obtain a consultation with an attorney experienced in divorce cases at the early stage of a nullity of marriage lawsuit.