Family Law Attorney
Annulment and Void Marriages
Texas allows a marriage to be annulled under very specific conditions. When an annulment is granted, the Court is essentially finding that the marriage was not entered into validly. An annulment “voids” a marriage which would otherwise be a valid marriage if no challenge were made to it. In other words, a marriage that is subject to being annulled is a “voidable” marriage, which should not be confused with a a truly “void marriage.”
A “void marriage” is one that was entered into illegally, such as a marriage between persons who are related to each other within a certain level of “consanguinity. In a nutshell, Section 6.201 of the Texas Family Code provides that a marriage is void if one person is related to another as:
(1) an ancestor or descendant, by blood or adoption;
(2) a brother or sister, of the whole or half blood or by adoption;
(3) a parent’t brother or sister, of the whole or half blood or by adoption; or
(4) a son or daughter of a brother or sister of the whole or half blood or by adoption
This means it is illegal to marry a parent, grandparent, great-grandparent, etc., a sibling or half-sibling, an uncle or aunt, or a first cousin, and includes any of these relationships which were created due to an adoption.
Another type of “void marriage” is a marriage entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. This type of void marriage is actually a hybrid between a “void marriage” and a “voidable marriage” because, as the statute makes clear, this marriage is only void for so long as the first marriage has not been dissolved and the other party to the first marriage is still alive. If a divorce or annulment is granted as to the first marriage (or if the other party to the marriage dies), the second marriage becomes a valid marriage as of the date of the divorce, annulment, or death, as long as the two parties continue to live together as husband and wife represent themselves as being married after the date the first marriage is dissolved. .
As one might expect, numerous issues arise when someone gets married while either party to the marriage is still married to someone else. Many times, a party to a marriage thinks a divorce or annulment was granted as to the first marriage when one was not. This is especially a problem if someone with whom a party to a marriage had a relationship suddenly claims a common law marriage existed and that marriage has not been dissolved. Whether the first marriage was by ceremony or by common law, there is a great deal of case law developed on the subject as to how property acquired in both marriages is to be treated, and these issues should be discussed thoroughly with your attorney.
Other “void marriages” (marriages that are absolutely invalid, include”
(1) a marriage to someone under the age of 16 (unless a court order was first obtained allowing the marriage); and
(2) a marriage to a step-child or step-parent.
A “voidable marriage” is one that can be annulled by the Court if requested by a party to the marriage, provided certain conditions are met. Generally speaking, an annulment can be granted so long as certain conditions are met as of the time the annulment is requested. Marriages entered into while a party is still married to someone else are discussed above, under “Void Marriages.” There are several specific grounds for annulment, including those listed below. In all of these cases, the Court may, but is not required, to grant the annulment:
- Marriage of a person who is 16 or 17 years of age, if that marriage occurred without parental consent or without a court order. However, this type of annulment may only be filed by a parent, guardian, managing conservator, or by a “next friend for the benefit of the underage party,” and it must be filed before the underage party turns 18 years of age. In such a case, a court may, but is not required, to grant the annulment.
- Under the influence of alcohol or narcotics. The Court may grant an annulment if the person seeking the annulment was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage, as long as the person seeking the annulment has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.
- Impotency. The Court may grant an annulment if either party, for physical or mental reasons, was permanently impotent at the time of the marriage, AND the person seeking the annulment did not know of the impotency at the time of the marriage, AND the petitioner has not voluntarily cohabited with the other party since learning of the impotency.
- Fraud, Duress, or Force. This is the most commonly invoked ground for annulment, as it is very broad and very subjective. Texas Family Code Section 6.107 states that a court may grant an annulment if the other party used fraud, duress, or force to induce the petitioner (the person seeking the annulment) to enter into the marriage AND the petitioner has not voluntarily cohabited with the other party since learning of the fraud, duress, or force.
- Mental Incapacity. A court may grant an annulment if a party to the marriage did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony due to a mental disease or defect AND the person seeking the annulment did not voluntarily cohabit with the other party to the marriage during a period when the person seeking the annulment possessed the mental capaicty to recognize the marriage relationship. This is a somewhat complicated ground, and would almost always require expert testimony to prove the mental incapacity, unless the annulment is agreed to by the parties. This type of annulment may also be filed for the benefit of a party by a guardian or “next friend” if the court finds it to be in the party’s best interest.
- Concealed Divorce. The court may grant an annulment of a marriage to a party if the other party was divorced from a third party within thirty days immediately preceding the date of the marriage ceremony AND at the time of the marriage ceremony, the petitioner did not know, and a reasonably prudent person would not have known, of the divorce, AND since discovering the divorce, the person seeking the annulment has not voluntarily cohabited with the other party.
- Marriage Less than 72 hours after Issuance of License. The court may grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place less than 72 hours after issuance of the marriage license (unless one of the exceptions to that rule, found in Texas Family Code §2.204, applies).
A common misconception is that an annulment can only be granted if the parties have been married for less than a certain amount of time. In truth, there is no time requirement. The issue most commonly argued is whether “fraud” was actually used to induce a person into a marriage, since the Texas Family Code does not exactly define that term for purposes of an annulment. The most common “fraud” seen in annulments is marriage for the purpose of acquiring immigration status. However, the term “fraud” is very broad, and can logically be expanded far beyond the simple and obvious. For instance, if a party to the marriage promises to be faithful to his fiancé in order to get him/her to marry him/her when the promising party has no intention of being faithful, does that constitute “fraud in the inducement of the marriage?” Because of the great difficulty in proving “fraud”, annulments are usually (but not always) entered into by agreement.
The Texas Family Code also provides that a marriage subject to an annulment (a “voidable” marriage”) cannot be challenged in court after the death of a party (for instance, in a probate proceeding).
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