Annulment

Many people contact our office wanting to seek an annulment of their marriage. This can be for religious purposes or just for the fact that the party seeking the annulment wants to completely erase the marriage. Unfortunately, many people are disappointed when we inform them that there are only a few statutory grounds to seek an annulment in Texas. That is, if you do not fit within these statutory grounds, then you must file for and seek a divorce if you no longer want to be married.

Texas Family Code Subchapter B Sections 6.102-6.111 set out the grounds for annulment which are as follows:

• Annulment of marriage of person under 18: This pertains to persons who get married and are between the ages of 16 and 17 and that marriage occurs without parental consent and without a court order. To fight this type of marriage, you can be a friend of one of the kids who got married, a parent, or a court ordered conservator or guardian of one of the kids. But, do know that if you are a friend, then you must file your suit for annulment within 90 days of the marriage. One special caveat—if you want to get this type of marriage annulled, and you’re one of the people listed who have the option of filing (friend, parent, conservator, and guardian), you must file before the kid’s 18th birthday. Also, do understand that it is not mandatory that the court grant the annulment. In fact, Section 6.104 states that it is discretionary and the court can consider factors such as the welfare of the parties and whether the girl is pregnant.

• Under Influence of Alcohol or Narcotics: good news, people! If you have a crazy night of partying and end up marrying a stranger, fear not. You can get this marriage annulled. The caveats of Section 6.105 state that in order to have a successful annulment for this particular problem, you need to have been so intoxicated by alcoholic beverages or narcotics that you did not have the capacity to consent to the marriage AND (this is the important part) you cannot have lived with the other party after the intoxication wore off. So, if you get wasted, get married, wake up, realize what has happened and still live with your new spouse (maybe to get to know each other?), then you cannot have an annulment.

• Impotency: Ok, I know what you are thinking. But, it is quite hard to get an annulment under this section. The elements of Section 6.106 are that (a) either party, whether it be a physical or mental issue, was PERMANENTLY impotent at the time of marriage; (b) you did not know about that other party’s impotence when you married them; and (again the important part) (c) you did not live with them after you found out about the impotency.

• Fraud, Duress or Force: Did the other party lie to you, threaten you, or handcuff you and make you get married? If so, you can get an annulment. Specifically, Section 6.107 states that if you married the other party based upon the other party’s fraud, duress, or force AND (we are seeing a reoccurring theme here) you did not live with the other party after you find out about the fraud or you are “released from the duress or force”, then you qualify for an annulment.

• Mental Incapacity: If you, your friend, or your guardian want to seek an annulment under this particular ground, Section 6.108 states that you can if (a) at the time of the marriage, the petitioner lacked the mental capacity due to mental disease or defect to consent to the marriage or understand that they were getting married; (b) the mentally incapacitated person did not live with the other party during the time when they understood that they were in fact married. If you are the other party and you want to now seek an annulment, you can do so if (a) at the time of the marriage, the other party lacked the mental capacity to consent to the divorce or understand that they were getting married (b) at the time of the marriage, you did not know and you could not have reasonably known about the mental disease or defect; and (c) since you did discover or should have reasonably discovered the other party’s mental disease or defect, you did not live with them.

• Concealed Divorce: If the other party was married and divorced before you and you never knew about it, then you can get an annulment. Ok, maybe it is a little more specific than that. Section 6.109 states that the previous divorce must have happened within the 30 days prior to your marriage, you did not know and a reasonably prudent person would not have discovered the divorce, and since you discovered or a reasonably prudent person would have discovered the divorce, you did not live with the other (shady!) party. Word of caution—make sure you file your annulment before your one year anniversary or it will be too late.

• Marriage less than 72 hours after marriage license issued: If you get married before the 72 hour waiting period required in Section 2.204 after the marriage license is issued by the county clerk and you are having second thoughts and want out, as long as you file before 30 days of the date of the marriage, you can get an annulment.

• Death of a Party to Voidable Marriage: This one is a tad confusing so let us quote the whole statute “Except as provided by Section 47A, Texas Probate Code, a marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party to the marriage.” Tex. Fam. Code Section 6.111. Ok, so maybe it just says that you cannot get an annulment if you file after the other party dies with the exception of that specific section in the Probate Code.

As you can imagine, the most common denominator for not qualifying for an annulment even if one of the aforementioned happened to you is that of the cohabitation with the other party. I cannot tell you the number of times someone comes to talk to me about an annulment/divorce and brings up “well he was married before and I didn’t find out until later”….and yet, the person sitting in my office still continued to live with their husband. Moral of the story, if any of these happen to you, leave immediately and consult with an attorney.