Annulment and Suit to Declare Marriage Void
§ 62.1Void and Voidable Marriages
Various portions of title 1 of the Texas Family Code address the validity of marriage, the presumptions of validity, and the grounds to set aside a marriage as either void or voidable.
There is a statutory presumption as well as a policy of the state to uphold each marriage against claims of invalidity unless strong reasons exist for holding it void or voidable. Therefore, every marriage entered into in Texas is considered valid, unless it is expressly made void by Family Code chapter 6 or expressly made voidable by chapter 6 and annulled as provided by that chapter. Tex. Fam. Code § 1.101; see Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975).
If two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves the validity of the prior marriage. Tex. Fam. Code § 1.102; Jordan v. Jordan, 938 S.W.2d 177, 179 (Tex. App.—Houston [1st Dist.] 1997, no writ); Loera v. Loera, 815 S.W.2d 910, 911 (Tex. App.—Corpus Christi–Edinburg 1991, no writ).
As used in the Family Code, an “annulment” is a proceeding to invalidate a voidable marriage (see Tex. Fam. Code §§ 6.102–.111) and a “suit to declare marriage void” is a proceeding to adjudicate the status of a void marriage (see Tex. Fam. Code §§ 6.201–.206).
COMMENT: Use forms 62-1 through 62-5 in this manual for an annulment proceeding and forms 62-6 through 62-8 for a suit to declare the marriage void.
[Sections 62.2 through 62.10 are reserved for expansion.]
The pleadings shall be styled “In the Matter of the Marriage of __________ and __________.” Tex. Fam. Code § 6.401(a). The petitioner’s name should be stated first. If there is a child, the caption continues with “and in the Interest of __________, (a) Child(ren).” Tex. Fam. Code § 102.008(a).
A suit for an annulment is an in rem proceeding and may be maintained in Texas only if the marriage took place in Texas or one of the parties is domiciled in Texas. Tex. Fam. Code § 6.306. There are no prescribed periods of durational residency or domicile like those established in section 6.301 of the Family Code for maintaining a divorce.
§ 62.13Jurisdiction over Nonresidents
The court may exercise personal jurisdiction over a nonresident respondent or his personal representative if the petitioner is a resident or domiciliary of Texas at the time the suit for annulment is filed and (1) Texas is the last marital residence of the petitioner and respondent and the suit is filed before the second anniversary of the date on which the marital residence ended or (2) if there is any basis consistent with the Texas and United States Constitutions for the exercise of personal jurisdiction. Tex. Fam. Code § 6.305(a). This jurisdiction over a nonresident party is necessary, even in an annulment suit, in order for the court to divide the marital estate. Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998). A court acquiring jurisdiction in this manner also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship. Tex. Fam. Code § 6.305(b).
A Texas court may grant an annulment to a Texas resident even if there is no personal jurisdiction over the nonresident spouse; such an order is called a “status adjudication.”
Personal jurisdiction over a nonresident may be established by the service of process on the nonresident while the nonresident was temporarily in the state. Burnham v. Superior Court of California, 495 U.S. 604, 619 (1990). The establishment of a marital residence requires more than occasional visits by one spouse to the other’s residence during marital separation. See Cossey v. Cossey, 602 S.W.2d 591, 595–96 (Tex. App.—Waco 1980, no writ).
No special provisions exist regarding venue in a suit for annulment; presumably venue is determined by the rules applicable to civil cases generally. See Tex. Civ. Prac. & Rem. Code § 15.002.
State policy creates a presumption in favor of the validity of a marriage unless strong reasons exist for holding it void or voidable. Tex. Fam. Code § 1.101. The Family Code provides various grounds on which an annulment may be sought. See Tex. Fam. Code §§ 6.102–.110.
Underage: Any marriage entered into on or after September 1, 2017, by a party younger than eighteen years of age is void unless a court order removing the disabilities of minority of the party for general purposes has been obtained in Texas or another state. Tex. Fam. Code § 6.205; see Broussard v. Arnel, 596 S.W.3d 911 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (full faith and credit clause did not compel recognition by Texas court of fifteen-year-old child’s out-of-state marriage, which is void as against Texas public policy).
An annulment suit pertaining to a marriage entered before September 1, 2017, may be brought if one party was under eighteen years but sixteen years or older, no parental consent was given and no court order was obtained, and suit is brought by the parent, managing conservator, or guardian of the underage party. Tex. Fam. Code § 6.102(a), (b). Although the statute does not say so, presumably the underage party could sue after coming of age if he had not ratified the marriage by voluntarily cohabiting after age eighteen.
Suit by a parent, managing conservator, or guardian may not be brought after the underage person has reached age eighteen. Tex. Fam. Code § 6.103.
For marriages entered before September 1, 2005, the relevant age limit is fourteen, rather than sixteen, years. See Acts 2005, 79th Leg., R.S., ch. 268, §§ 4.15, 4.16, 4.24 (S.B. 6), eff. Sept. 1, 2005.
Alcohol or Narcotics: The court may grant an annulment of a marriage if the petitioner was under the influence of alcoholic beverages or narcotics at the time of the marriage and as a result did not have the capacity to consent and the petitioner did not voluntarily cohabit with the other party to the marriage after the effects of the alcohol or narcotics ended. Tex. Fam. Code § 6.105.
Impotency: The court may grant an annulment if either party was permanently impotent at the time of the marriage and the petitioner did not know of the impotency at the time of the marriage and the petitioner did not voluntarily cohabit with the other party to the marriage after learning of the impotency. Tex. Fam. Code § 6.106.
Fraud or Duress: The court may grant an annulment if the other party used fraud, duress, or force to induce the petitioner to enter the marriage and the petitioner did not voluntarily cohabit with the other party to the marriage after learning of the fraud or being released from the duress or force. Tex. Fam. Code § 6.107.
Notwithstanding the passage of nearly six years between the dates of marriage and separation, sufficient evidence supported a finding of fraud as the basis for annulment under section 6.107 when the wife had disclosed three prior marriages before the marriage ceremony but had actually been married eight times, the husband said he would not have married had he known the true number of the wife’s prior marriages, and the husband did not discover the true number of prior marriages until the wife had moved out of the residence and filed for divorce. Leax v. Leax, 305 S.W.3d 22 (Tex. App.—Houston [lst Dist.] 2009, pet. denied). See also Montenegro v. Avila, 365 S.W.3d 822, 828 (Tex. App.—El Paso 2012, no pet.) (annulment granted because husband fraudulently induced wife to marry him so he could obtain a permanent green card).
Mental Incompetency: The court may grant annulment of a marriage to a party if the court finds that at the time of the marriage the 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, and if the party did not voluntarily cohabit with the other party to the marriage during any period since the marriage when the party possessed the mental capacity to recognize the marriage relationship. See In re Marriage of Thrash, 605 S.W.3d 224 (Tex. App.—San Antonio 2020, pet. denied) (marriage of ward who was declared incapacitated prior to marriage and remained incapacitated throughout marriage properly annulled in suit brought by guardian). The court may also grant annulment of a marriage to a party if the court finds that 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, and at the time of the marriage the petitioner did not know or reasonably should not have known of the mental disease or defect, and 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. Tex. Fam. Code § 6.108; see Kerckhoff v. Kerckhoff, 805 S.W.2d 937, 940 (Tex. App.—San Antonio 1991, no writ).
Concealed Divorce: The court may grant an annulment to the petitioner if the respondent was divorced from a third party within thirty days before the marriage, the petitioner did not know and reasonably could not have known of the divorce, and the petitioner did not voluntarily cohabit with the respondent since the petitioner discovered or reasonably should have discovered the divorce. A marriage may not be annulled on the ground of concealed divorce after the first anniversary of the date of the marriage. Tex. Fam. Code § 6.109.
Marriage Less Than Seventy-Two Hours after License Issued: The court may grant an annulment if the marriage ceremony took place in violation of Family Code section 2.204 during the seventy-two-hour period immediately following the issuance of the marriage license. However, a suit may not be brought on this ground after the thirtieth day after the date of the marriage. Tex. Fam. Code § 6.110.
Except as provided by subchapter C, chapter 123, of the Texas Estates Code (certain proceedings to declare a marriage void based on mental incapacity), a marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party. Tex. Fam. Code § 6.111; see Coulter v. Melady, 489 S.W.2d 156, 159 (Tex. App.—Texarkana 1972, writ ref’d n.r.e.).
A petition is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute. Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency. The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion. Tex. Fam. Code § 6.402.
The petition must state whether, in regard to a party to the suit or a child of a party to the suit, there is in effect a protective order under Family Code title 4, a protective order under subchapter A, chapter 7B, of the Code of Criminal Procedure, or an order for emergency protection under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these orders is pending. The petitioner must attach a copy of each such protective order in which a party to the suit or the child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 6.405.
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
A man is the presumed father of a child born during or not more than three hundred days after the date of termination of a marriage or attempted marriage that is annulled. See Tex. Fam. Code § 160.204(a)(1)–(3). A man is also presumed to be the father of a child if he married the mother of the child after the birth of the child, he voluntarily asserted his paternity of the child, and (1) the assertion is in a record filed with the bureau of vital statistics, (2) he is voluntarily named as the child’s father on the child’s birth certificate, or (3) he promised in a record to support the child as his own. Tex. Fam. Code § 160.204(a)(4). A man is also presumed to be the father of a child if, during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own. Tex. Fam. Code § 160.204(a)(5).
The presumption may be rebutted only by an adjudication under subchapter G of chapter 160 of the Family Code or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Family Code section 160.305. Tex. Fam. Code § 160.204(b).
A suit affecting the parent-child relationship brought in conjunction with an annulment is treated in the same manner as in a divorce.
After a suit for annulment is filed, on the motion of a party or on the court’s own motion, the court may grant temporary orders, temporary restraining orders, and temporary injunctions in the same manner as applicable to divorce. Tex. Fam. Code §§ 6.501–.503.
See chapter 4 of this manual for further discussion, including temporary orders in a parent-child suit.
§ 62.20Orders Protecting against Family Violence
On the motion of a party to a suit for annulment, the court may render a protective order. Tex. Fam. Code § 6.504. Protective orders are discussed in chapter 17 of this manual.
§ 62.21Spousal Maintenance (Alimony)
Spousal maintenance (alimony) may be granted in a suit for annulment. See Tex. Fam. Code § 8.001 et seq. See section 23.9 in this manual.
In a suit for annulment, the court shall order a division of the estate of the parties in the same manner as in a divorce. Tex. Fam. Code § 7.001.
In the final decree of annulment, the court must change the name of a party specifically requesting the change to a name previously used unless the court states in the decree a reason for denying the change of name. The court may not deny a change of name solely to keep the last name of family members the same. Tex. Fam. Code §§ 6.706(a), (b), 45.105(a). A court may not change the name of an adult at the request of a third party and against the wishes of the adult. Gault v. Gault, No. 13-18-00097-CV, 2019 WL 4008403, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2019, pet. denied) (mem. op.) (husband does not have standing to request name change for wife against her wishes).
A change of name does not release a person from liability incurred under a previous name or defeat a right the person held under a previous name. Tex. Fam. Code §§ 6.706(c), 45.104.
A person whose name has been changed in a suit for annulment may apply for a change-of-name certificate from the clerk of the court. Tex. Fam. Code §§ 6.706(d), 45.105(b); see also Tex. Fam. Code § 45.106.
The certificate under section 45.106 constitutes proof of the change of name. Tex. Fam. Code § 45.106(d).
An annulment under Family Code section 6.102 (regarding underage persons) may be granted at the court’s discretion without a jury. In exercising its discretion, the court shall consider all pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant. Tex. Fam. Code § 6.104.
[Sections 62.25 through 62.30 are reserved for expansion.]
III. Suit to Declare Marriage Void
The pleadings shall be styled “A Suit to Declare Void the Marriage of __________ and __________.” Tex. Fam. Code § 6.401(b). If there is a child, the caption continues with “and in the Interest of __________, (a) Child(ren).” Tex. Fam. Code § 102.008(a).
Either party may bring suit to declare a marriage void. However, unlike the voidable marriage, the void marriage may also be attacked collaterally. Tex. Fam. Code § 6.307(a).
A suit to declare a marriage void is an in rem proceeding affecting the status of the parties to the purported marriage and can be maintained in Texas only if the purported marriage took place in Texas or one of the parties is domiciled in Texas. Tex. Fam. Code § 6.307(b), (c). There are no prescribed periods of durational residency or domicile like those established in section 6.301 of the Family Code for maintaining a divorce.
§ 62.34Jurisdiction over Nonresidents
The provisions for acquiring jurisdiction over nonresidents in a suit to declare a marriage void are the same as in a suit for annulment. See section 62.13 above.
There are no special provisions regarding venue in a suit to declare a marriage void; presumably venue is determined by the rules applicable to civil cases generally. See Tex. Civ. Prac. & Rem. Code § 15.002.
Consanguinity: A marriage is void if one of the parties is related to the other as an ancestor or descendant, by blood or adoption; a brother or sister, of the whole or half blood or by adoption; a parent’s brother or sister, of the whole or half blood or by adoption; or a son or daughter of a brother or sister, of the whole or half blood or by adoption. Tex. Fam. Code § 6.201.
Prior Marriage: A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved. Tex. Fam. Code § 6.202(a). The validity of the second marriage relates back to the date of the dissolution of the first marriage. Caddel v. Caddel, 486 S.W.2d 141, 145 (Tex. App.—Amarillo 1972, no writ). This principle applies even if the first marriage is terminated by the death of one spouse and the second marriage is a common-law marriage. See Rodriguez v. Avalos, 567 S.W.2d 85, 86–87 (Tex. App.—El Paso 1978, no writ).
If multiple marriages are alleged, the most recent marriage is presumed to be valid as against each preceding marriage until one who asserts the validity of a prior marriage proves its validity. Tex. Fam. Code § 1.102. A spouse seeking to annul a marriage on the ground that the other spouse had a prior undissolved marriage has the burden of establishing the prior marriage and its continuing validity at the time of the subsequent marriage. Loera v. Loera, 815 S.W.2d 910, 911 (Tex. App.—Corpus Christi–Edinburg 1991, no writ).
Marriage to Minor: A marriage entered on or after September 1, 2017, is void if either party to the marriage is younger than eighteen years of age, unless removal of the disabilities of minority of the party has been obtained by court order in Texas or another state. Tex. Fam. Code § 6.205. (A marriage entered on or after September 1, 2007, but before September 1, 2017, is void if either party to the marriage was younger than sixteen years of age, unless a court order was obtained under former section 2.103 of the Family Code. Acts 2007, 80th Leg., ch. 52, § 6 (S.B. 432), eff. Sept. 1, 2007. A marriage entered on or after September 1, 2005, but before September 1, 2007, is void if either party to the marriage was younger than sixteen years of age. Acts 2005, 79th Leg., R.S., ch. 268, § 4.24 (S.B. 6), eff. Sept. 1, 2005.)
Marriage to Stepchild or Stepparent: A marriage entered on or after September 1, 2005, is void if a party to the marriage is a current or former stepchild or stepparent of the other party. Tex. Fam. Code § 6.206; Acts 2005, 79th Leg., R.S., ch. 268 § 4.24 (S.B. 6), eff. Sept. 1, 2005.
No limitation to bring suit to void a marriage is stated in the Family Code, and the provision for collateral attack presumably allows a challenge after the death of one party or both. See Jordan v. Jordan, 938 S.W.2d 177, 179 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
The provisions for pleadings in a suit to declare a marriage void are the same as in a suit for annulment. See section 62.17 above.
A man is the presumed father of a child born during or not more than three hundred days after the date of termination of a marriage or attempted marriage that is declared invalid. See Tex. Fam. Code § 160.204(a)(1)–(3). A man is also presumed to be the father of a child if he married the mother of the child after the birth of the child, he voluntarily asserted his paternity of the child, and (1) the assertion is in a record filed with the bureau of vital statistics, (2) he is voluntarily named as the child’s father on the child’s birth certificate, or (3) he promised in a record to support the child as his own. Tex. Fam. Code § 160.204(a)(4). A man is also presumed to be the father of a child if, during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own. Tex. Fam. Code § 160.204(a)(5).
The presumption may be rebutted only by an adjudication under subchapter G of chapter 160 of the Family Code or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Family Code section 160.305. Tex. Fam. Code § 160.204(b).
A suit affecting the parent-child relationship brought in conjunction with a suit to declare a marriage void is treated in the same manner as in a divorce.
Temporary orders may issue in a suit to declare a marriage void, and the same rules apply in such cases as in suits for annulment. See section 62.19 above.
§ 62.41Orders Protecting against Family Violence
On the motion of a party to a suit to declare a marriage void, the court may issue a protective order. Tex. Fam. Code § 6.504. Protective orders are discussed in chapter 17 of this manual.
§ 62.42Spousal Maintenance (Alimony)
Spousal maintenance (alimony) may be granted in a suit to declare a marriage void to putative spouse who did not have knowledge of an existing impediment to a valid marriage. Tex. Fam. Code § 8.060. See the practice notes in section 23.9 in this manual.
The Family Code does not provide for division of property in a suit to declare a marriage void, and the form in this manual presupposes that no property exists.
However, a putative spouse, one acting in good faith, believing the marriage was valid, does have rights to property acquired during the time the parties lived together. See Davis v. Davis, 521 S.W.2d 603, 606 (Tex. 1975). A putative spouse should request an equitable property division.
Although in a suit for divorce or annulment certain transfers of real or personal community property or debts incurred by one spouse while such suit is pending may be void (see Tex. Fam. Code § 6.707(a)), the Family Code does not provide any such provision pertaining to a suit to declare a marriage void.
In the final decree in a suit to declare a marriage void, the court must change the name of a party specially praying for the change to a prior used name unless the court states in the decree a reason for denying the change of name. The court may not deny a change of name solely to keep the last name of family members the same. A court may not change the name of an adult at the request of a third party and against the wishes of the adult. Gault v. Gault, No. 13-18-00097-CV, 2019 WL 4008403, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2019, pet. denied) (mem. op.) (husband does not have standing to request name change for wife against her wishes).
A person whose name has been changed in a suit to declare a marriage void may apply for a change-of-name certificate from the clerk of the court. Tex. Fam. Code § 45.105; see also Tex. Fam. Code § 45.106.
A change of name does not release a person from liability incurred under the previous name or defeat a right the person held under the previous name. Tex. Fam. Code § 45.104.
The certificate under section 45.106 constitutes proof of the change of name. Tex. Fam. Code § 45.106(d).