Is an individual able to choose a divorce or annulment?

As a divorce attorney with “The Barbosa Law Firm, P. C.” in Dallas, Texas, I get calls from individuals who are not sure as to whether they should file for a divorce or seek an annulment of their marital relationship.   It is not a choice that the Texas Family Code allows individuals attempting to dissolve their marriage.

There are specific grounds for an individual to get their marriage “annulled”.   The Texas Family Code in Section 6.102 describes how a person can seek the Court to grant an annulment of a marriage 16 years of age or older but under 18 years of age that occurred without parental consent or without a court order as provided by other provisions in the Texas Family Code.

A petition under section 6.102 may be filed by 1) a next friend for the benefit of the underage party; 2) a parent; or, 3) the judicially designated managing conservator or guardian of the person of the underage party, whether an individual, authorized agency, or court.

Section 6.104 allows the court discretion in granting an annulment of an underage marriage.   In exercising its discretion, the court shall consider the pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant.

A court may also grant an annulment of a marriage to a party if, under section 6.105 of the Texas Family Code, at the time of the marriage the petitioner was under the influence of alcoholic beverage or narcotics and as a result did not have the capacity to consent to the marriage; and, the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.

If the male party to a marriage is impotent, the court may grant an annulment of a marriage to a party of the marriage if either party, for physical or mental reasons was permanently impotent at the time of the marriage; and the petitioner did not know of the impotency at the time of the marriage.   The individual must not have voluntarily cohabited with the other party since learning of the impotency.

One of the most common use section of the Texas Family Code to get the court to annul the marriage is section 6.107 – fraud, duress, or force. The court may grant an annulment of a marriage to a party to the marriage if the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner has not voluntarily cohabited with the other person since learning of the fraud or since being released from the duress or force.

The court may also grant an annulment of a marriage if at the time of the marriage the petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect.

A concealed divorce may also be grounds for an annulment on Texas if the other party was divorce from a third party within the 30-day period preceding the date of the marriage ceremony.

The court may also annul the marriage and grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place in violation of Section 2.204 during the 72-hour period immediately following the issuance of the marriage license.

It is also important to remember the 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.