I have numerous calls to my office from individuals who wish to “annul” their marriage. Many of the inquiries have the common theme of the marriage being a very short duration marriage. Individuals have a believe that if their marriage lasted for a short period of time, the law allows them to “annul” their marriage. Even though an annulment is a rather simple process to pursue in Texas, it is not an automatic solution just because the marriage lasted a short period of time.
The legal process to annul a marriage is referred to as a petition to either declare a marriage “void” or petition to annul a “void” marriage.
The most common ground for an annulment is “misrepresentation” that coerced the individual to enter into the marriage. That is where the problem begins. One of the parties to the marital relationship must be accused of misrepresentation. Usually, one of the parties is not willing to accept the blame for misrepresenting themselves to the other party.
So the next common question from individuals wishing to dissolve their marriage is – can I choose to dissolve my marriage either with an annulment or a divorce. The answer is “No”. There are very different ground for dissolving a marriage with an annulment or with a divorce. The more common ground is for the marriage to be dissolve with a divorce. The grounds for dissolving a marriage with an annulment are very more restrictive.
The most common ground is referred to as Fraud, Duress, or Force by the Texas Family Code. Sec. 6.107. of the Texas Family Code involves FRAUD, DURESS, OR FORCE. The court may grant an annulment of a marriage to a party to the marriage if: (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.
Another ground for obtaining an annulment is Mental Incapacity. Under section 6.108 of the Texas Family Code, The court may grant an annulment of a marriage to a party to the marriage on the suit of the party or the party’s guardian or next friend, if the court finds it to be in the party’s best interest to be represented by a guardian or next friend, if:
(1) 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; and
(2) since the marriage ceremony, the petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.
(b) The court may grant an annulment of a marriage to a party to the marriage if:
(1) at the time of the marriage the other party 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;
(2) at the time of the marriage the petitioner neither knew nor reasonably should have known of the mental disease or defect; and
(3) since the date the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabited with the other party.
Concealing a divorce from your spouse is also a common ground for file a petition to void a marriage. The court may grant an annulment of a marriage to a party to the marriage if:
(1) the other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony;
(2) 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
(3) since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, the petitioner has not voluntarily cohabited with the other party. A suit may not be brought under this section after the first anniversary of the date of the marriage.
Before you file a Petition to Annul a marriage or to declare the marriage “void”, do some research or consult with an attorney to make sure you are not seeking a remedy that is not available to you. It is not a choice for an individual to make as to whether the individual wants to pursue a “divorce” or an “annulment”