Did you know that some marriages in Texas are either void, voidable, or both? “Void” and “voidable” are just legal terms for the grounds that you must have to get an annulment in Texas. Unfortunately, most people who are thinking of getting an annulment don’t meet the requirements, and end up getting a divorce. And many people who are seeking annulments are Catholic, and don’t understand that a civil annulment is not the same thing as a religious annulment. The Pope doesn’t answer to a State District Judge in Texas, and vice versa.
So what are the grounds for annulment of a marriage in Texas? They’re divided into two different groups: void marriages and voidable marriages. “Void marriages” are marriages that never could have been, and “voidable marriages” are marriages that never should have been.
There are three (3) grounds for declaring a marriage void in Texas: consanguinity and the existence of a prior marriage.
Consanguinity is just a large word for getting married to someone who is too close of a relative. By that, the law means a father or mother, a child, a brother or sister, an aunt or an uncle, a nephew or a niece. If you marry that close a relative, then you can seek an annulment to declare your marriage void. (Please note that cousins are not considered “too close” a relative in Texas. Really? Obviously, whoever is writing Texas law has never met any of MY cousins!) J (Just kidding, y’all!)
ONE SPOUSE IS ALREADY MARRIED
You can also have your marriage declared void if your spouse was married to someone else when he/she married you. Obviously, one of the prerequisites of getting married under Texas law is that you have to be a single person. If you’re not single, you can’t enter into a marriage contract and the marriage is void. (I once had a client whose wife TOLD him she got divorced from him. She even brought him a copy of a decree. Unfortunately, she lied. When he got married two years later, she had him charged with bigamy – which is a FELONY in Texas. He was not a happy man! You can only rely on a copy of a divorce decree if it is a certified copy! – Look for the red stamp that says “certified copy”!)
Here’s a twist . . . you are married to someone who is already married to someone else, if you stay married to the person and they dissolve their first marriage, then you automatically become married to them when the first marriage ends. (But, when is your anniversary date? Hmmm….)
MARRIAGE UNDER AGE 16
If you entered into a marriage when you were under sixteen (16) years of age, without a court order, then the marriage is void. The suit can be brought by your parents, managing conservator, or even a friend of the court. It must be brought within ninety (90) days of the date that the petitioner knew of the marriage or within ninety (90) days of the 16th birthday of the party to the marriage, whichever is later. Texas law used to allow a child as young as age fourteen (14) to get married with parental permission, but that law was changed when a religious cult moved to West Texas and began to marry off their fourteen (14) year-old girls to one another. I wonder who ever thought that marrying off fourteen year-olds was a good idea, anyway? They couldn’t even drive!
Now let’s talk about voidable marriages.
There are a number of instances in Texas where you can petition to have your marriage declared void. If you do nothing, your marriage will be considered as fully legitimate. However, you can also “undo” the marriage if you want to do that. Here’s the laundry list of marriages that you could have declared void in Texas:
MARRIAGE UNDER AGE EIGHTEEN
If you entered into a marriage when you were over age sixteen (16), but under eighteen (18), and you did it without parental consent or a court order, then you can get an annulment. The suit can be brought by your parents, by your managing conservator, or by a friend of the court. An annulment under this section can’t be brought if you’ve turned eighteen (18) since you got married.
UNDER INFLUENCE OF ALCOHOL OR DRUGS
There’s nothing very fancy about this area of the law. If you were too smacked to know what you were doing and you woke up in bed the next with morning with a wedding ring on, then you can get an annulment. However . . . you can’t get the annulment if you’ve voluntarily cohabited with the person since you sobered up. In other words, if you ran screaming out of the house, never to return, you’re fine. If, however, you rolled over, went back to sleep, woke up, made love a few times, and then stayed there for a week, you’re out of luck. If you want a “do-over”, it will be a D-I-V-O-R-C-E for you!
This section is not for the squeamish, OK? If you’re squeamish, easily embarrassed, sheltered, or innocent, skip this section and move on to the next one!
The court can grant an annulment if “either party” was permanently impotent at the time of the marriage. That’s what Section 6.106 of the Family Code says. I know, I know . . I didn’t know that women could be impotent, either, but there you are. If it says so in the Texas Family Code, it’s gotta be true. (OK, all kidding aside, the Texas Family Code actually says “if either party, for physical or mental reasons is permanently impotent at the time of the marriage”. I’ve had lots of male clients complain that their wives are mentally impotent, e.g., having zero interest in bed, so maybe women can be impotent, at least mentally!)
Seriously, though, what they’re talking about here is any condition, physical or mental, that permanently prevents either party from being able to have sex. If you got married to someone with the full expectation of being able to have normal sexual relations with him/her – or even abnormal, I guess – and you then learned that they weren’t capable of doing that, you can get an annulment.
However . . . you can not have known of the condition at the time that you got married, and you cannot have voluntarily lived with the other party since you learned of it.
FRAUD, DURESS, OR FORCE
Duress and force are pretty easy to define here. If you got married to someone because they threatened to hurt you or they put enormous psychological pressure on you, then you can get an annulment.
Fraud is a little harder to pin down. If, for instance, you were to marry a woman with the expectation that she was a normal, heterosexual female, and she turned out to be a lesbian with no interest in you whatsoever, then that would be fraud. If someone so grossly misrepresents themselves that you could have never known who they actually were, that would be fraud. Basically, it’s getting seriously conned, whether emotionally, sexually, or financially, by the person you married.
Now, that doesn’t include such things as getting married to a neat, romantic man and then finding out that he pees in the shower and refuses to shave on Sundays. That doesn’t include finding out that your wife actually always hated NASCAR and she was just telling you she liked it because you were courting.
If you file under these grounds, you cannot have lived with the person since you learned of the fraud, or from the time that you were able to escape whatever duress or force made you marry him/her.
This, again, goes back to marriage being a contract that’s freely entered into by two competent individuals. The Family Code breaks this down into two sections. You can get an annulment under these grounds if:
► You, at the time you were married, lacked the mental capacity to consent to a marriage or to really understand the nature of the marriage relationship because of mental illness or a mental defect; and, you did not go on voluntarily living with the other person when you had the mental capacity to understand what you had done. In other words, if you were severely mentally ill, or had suffered an injury that diminished your ability to understand marriage, and then you recovered from it and immediately moved out, then you can get an annulment.
You can also get an annulment under these grounds if:
►Your spouse did not have the mental capacity to understand the nature of marriage or to enter into the marital contract; and:
- there was no way that you could have known that your spouse lacked that capacity;
- and – you haven’t lived with your spouse since you discovered that he/she lacked the mental capacity to understand the marriage relationship or to enter into the marital contract.
Texas has a law that says that you can’t get married in the State within thirty (30) days after you get a divorce. Basically, that’s to give the other party a chance to receive their paperwork from the divorce and reopen the case if they think they’ve gotten taken advantage of in the divorce decree.
So, if your spouse got married to you LESS than thirty (30) days after he/she got a divorce in Texas, AND there was no way that you could have known about that, AND you quit living with your spouse right after you found out, then you can get an annulment. BUT . . . you can’t get an annulment on these grounds after your first wedding anniversary. (There is a 12-month limit to this type of annulment!)
MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF THE MARRIAGE LICENSE
Texas requires people to wait at least seventy-two (72) hours after they get their marriage license before they can get married. (This’ Texas attempt to give you a chance to sober up, if you are drunk or high at the time you apply for your marriage license. The Great State of Texas cares about you!) If you find out that your spouse didn’t wait those seventy-two (72) hours, you can get an annulment. And you should personally make a note to remember to actually read things like marriage licenses in the future. They can be important.
You can’t file for an annulment under these grounds, if you’ve been married for more than thirty (30) days. You’ll have to be fast if you’re going to use this ground for an annulment!
So, those are the grounds for annulment under Texas family law. If you meet the requirements of any of them, then you can file for an annulment. If you don’t, you have to get a divorce.
What are the major differences? Annulment is quicker. There’s a mandatory sixty (60) day waiting period for a divorce. Annulments can be granted immediately. Another major difference, however, is that you have to be able to prove your grounds in an annulment hearing. If you go into court and say you were drunk as a skunk when you got married or your wife turned out to be as frigid as an icebox, you’ve got to actually prove it. If you can’t, no annulment for you! Do not pass go; do not collect $200! In a divorce, you can file, “no fault,” and just say that you’re incompatible, and you don’t have to prove anything. So, you need to decide, in conjunction with your lawyer, what the best approach is for you!
This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have. Janis Alexander Cross of Buckner & Cross, L.L.P. would be happy to talk with you to discuss your legal options!