Annulment

annulment pic

A suit for annulment, as opposed to a suit for divorce, is brought when there was a legal impediment to the creation of a valid marriage. Annulment is based on a pre-marital cause, rather than a post-marital cause. A marriage subject to annulment is voidable – meaning, it is a valid marriage until an annulment is granted. Once granted, the marriage becomes void and is considered never to have happened.

To obtain an annulment, the requesting spouse must prove the existence of at least one of the following seven grounds for annulment:

  1. Marriage of underage spouse. A marriage can be annulled if one of the spouses was at least 16 years old, but less than 18 years old, at the time of marriage and the spouse did not have parental consent or court-ordered permission to marry. In exercising its discretion to annul an underage marriage, the court must consider facts relevant to the welfare of the spouses, including whether the wife is pregnant.
  2. Influence of drugs or alcohol. A marriage can be annulled if at the time of the marriage the requesting spouse (a) was under the influence of alcoholic beverages or narcotics, and (b) lacked the capacity to consent to the marriage, and (c) has not voluntarily cohabited with the other spouse since the effects of the alcoholic beverages or narcotics ended. The intoxication must be such that the requesting spouse was so drunk his or her reason, memory, judgment and mental faculties were substantially impaired.
  3. Impotency. A marriage can be annulled if (a) either spouse was permanently impotent at the time of the marriage, for physical or mental reasons, (b) the requesting spouse did not know of the impotency at the time of the marriage, and (3) the requesting spouse has not voluntarily cohabited with the other spouse since learning of the impotency.
  4. Fraud, duress, or force. A marriage can be annulled if (a) one spouse used fraud, duress or force on the other spouse to bring about the marriage, and (b) the requesting spouse has not voluntarily cohabited with the other spouse since learning of the fraud or being released from the duress or force. “Fraud” is a material misrepresentation intending to induce the requesting spouse into the marriage. “Duress” or “force” is when (a) a spouse has threatened to do some act he or she has no legal right to do, (b) the threat destroys the requesting spouse’s freedom, thereby causing him or her to do what he or she would not otherwise do and is not legally bound to do, (c) the restraint on the requesting spouse’s freedom caused by the threat is imminent, and (d) the threat is such that the requesting spouse has no present means of protection.
  5. Mental incapacity. A marriage can be annulled based on a spouse’s mental incapacity, which can continue and be requested after the death of a spouse in certain situations. The grounds for annulling a marriage based on mental incapacity are different depending on (a) when the suit is filed—before or after death, (b) when a spouse dies—before or during the suit for annulment, and (c) which spouse dies—the incapacitated spouse or the non-incapacitated spouse.
    1. Annulment filed before death.
      1. Neither spouse dies during pendency. If a suit for annulment based on mental incapacity is filed before the death of a spouse and neither spouse dies during while the suit is pending, the following standards for granting the annulment apply:
        1. When requesting spouse is incapacitated. A marriage can be annulled if (a) at the time of the marriage, the requesting spouse did not have the mental capacity to consent to marriage or understand the nature of the marriage ceremony due to mental disease or defect, and (b) since the marriage ceremony, the requesting spouse has not voluntarily cohabited with the other spouse while he or she possessed the mental capacity to recognize the marriage relationship.
        2. When other spouse is incapacitated. A marriage can be annulled if (a) at the time of the marriage, the non-requesting spouse 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, (b) at the time of the marriage, the requesting spouse did not know (or reasonably should have known) of the mental disease or defect, and (c) from the date the requesting spouse discovered (or should have discovered) the mental disease or defect, the requesting spouse has not voluntarily cohabited with the non-requesting spouse.
      2. Incapacitated requesting spouse dies while suit for annulment is pending. If a suit for annulment based on the requesting spouse’s mental incapacity is filed before his or her death and the requesting spouse dies while the suit for annulment is pending, the suit may proceed to a final judgment.
      3. Incapacitated non-requesting spouse dies while suit for annulment is pending. If a suit for annulment based on the non-requesting spouse’s mental incapacity is filed before his or her death and the non-requesting spouse dies while the suit for annulment is pending, the suit may not continue and will be dismissed.
    2. Annulment filed after death. If a spouse dies before a suit for annulment if filed, an interested person can sue for the incapacitated decedent. A marriage of an incapacitated decedent can be annulled if (a) the decedent was married at the time of his or her death, (b) the decedent’s marriage commenced no more than three years before the decedent’s death, and (c) the court finds that on the date the marriage occurred, the decedent did not have the mental capacity to consent to the marriage and understand the nature of the marriage ceremony. The court, however, cannot grant an annulment if the court finds after the marriage occurred, the decedent gained the mental capacity to recognize the marriage relationship and, in fact, recognized it.
  6. Concealed divorce. A marriage can be annulled if (a) a spouse divorced a third party within 30 days before the date of marrying the requesting spouse, (b) at the time of the marriage ceremony, the requesting spouse did not know, and a reasonably prudent person would not have known, of the divorce, (c) since the requesting spouse discovered, or a reasonable prudent person would have discovered, the divorce, the requesting spouse has not voluntarily cohabited with the other spouse, and (d) the suit for annulment is brought before the first anniversary of the marriage. Only the spouse from whom the divorce was concealed, not the party who concealed the divorce, is entitled to sue for annulment on this ground.
  7. Marriage less than 72 hours after issuance of license. A ceremonial marriage can be annulled if it is conducted within 72 hours after the parties obtained their marriage license. Applicants must wait 72 hours after obtaining a marriage license to marry ceremonially. The 72-hour waiting period, however, does not apply to an applicant who (a) is a member of the United States armed forces on active duty, (b) is not a member of the United States armed forces, but works for the United States Department of Defense as an employee or contractor, (c) has obtained a written waiver of the waiting period, or (d) has completed a pre-marital education course and filed a certificate of completion with the county clerk.

Who can sue for annulment and when the suit can be filed are summarized in the following tables:

WHO CAN FILE AN ANNULMENT

GROUNDS FOR ANNULMENT

WHO CAN FILE

Marriage of underage spouse

Next friend, parent or judicially Designated managing conservator or guardian (whether an individual, authorized agent, or court).
Influence of drugs or alcohol Spouse who was under the influence.
Impotency Either spouse.
Fraud, duress or force Spouse who was induced by fraud, duress, or force.
Mental incapacity (suit filed before spouse’s death) Either spouse, spouse’s guardian or next friend.
Mental incapacity (filed after spouse’s death) Interested person.
Concealed divorce Spouse who did not conceal the divorce.
Marriage less than 72 hours after license

Either spouse.

 

WHEN TO FILE AN ANNULMENT

GROUND FOR ANNULMENT

WHEN TO FILE

Spouse at least 16 years old, but under age 18 If brought by next friend, suit must be filed within 90 days after the marriage. If brought by parent, managing conservator or guardian, suit must be filed before the child turns 18. In either case, suit must be filed before death of spouse.
Influence of drugs or alcohol Suit must be filed before death of spouse.
Impotency Suit must be filed before death of spouse.
Fraud, duress or force Suit must be filed before death of spouse.
Mental incapacity Suit must be filed before death of the non-incapacitated spouse or within one year after the incapacitated spouse dies.
Concealed divorce Suit must be filed before the first anniversary of the marriage and before death of spouse.
Marriage less than 72 hours after license Suit must be filed within 30 days after the marriage and before death of spouse.

If you or a loved one has entered into a marriage that in hindsight should be annulled, call Sonya Coffman because . . . family matters.