When is a Marriage Not a Marriage?

As a San Antonio, Texas divorce lawyer, I find that many clients don't realize that annulment and divorce are NOT the only ways to end a marriage.  There are a number of situations which can result in a "Void Marriage" in Texas, meaning that for one reason or another, the marriage was invalid. 

Whenever discussing the subject of void marriage, I also have to explain the difference between a "void marriage" and a "voidable" marriage.  The general idea is that a void marriage is invalid and can NEVER become valid under any circumstances. For instance, a marriage between two close relatives, such as brother and sister, mother and father, etc., is a void marriage.  Such a marriage is void for all purposes and can never become a valid marriage.

By contrast, a marriage entered into when one of  the parties to the marriage is already married to someone else (bigany) is void only until the a divorce or annulment is obtained from the first spouse.  For instance, let's say a man starts divorce proceedings against his wife, believes the divorce is final, and then remarries someone else.  Later, he discovers that the first divorce was never finalized.  This makes his second marriage is voidable (void for the time being), but it will become a valid marriage if he goes back and finalizes the original divorce.  The second marriage will become a valid marriage as of the date that the first marriage is dissolved.   In other words, either spouse can go to court and have the second marriage declared void as long as he or she does so before the first marriage is dissolved.  There is one important exception to this rule:  if the man and 2nd wife in our example are not living together and not holding themselves out as being married at the time the first divorce becomes final, then the second marriage does NOT become a valid marriage.  This can get tricky legally, and may still result in litigation just to get a court order that says the second marriage is void.

Annulment is another example of a "voidable" marriage.  There are number of situations which are grounds for having an annulment, but the marriage remains valid until someone files for an annulment.  In many cases, the circumstances which constitute grounds for an annulment may go away, at which point an annulment is no longer possible. For example, the most common grounds for annulment is "fraud in the inducement of the marriage."  If one party uses fraud to induce someone into a marriage, then the defrauded spouse can get the marriage annuled if he or she does not voluntarily live with the fraudulent spouse as soon as the fraud is discovered.  However, if the spouses continue to live with one another after the fraud is discovered, annulment is no longer possible, and the marriage may only be dissolved by divorce.

A related topic of void and voidable marriages is the issue of a "putative marriage."  Going back to my bigamy example, the second-marriage spouse typically is unaware of his or her spouse's previous marriage (which is not yet dissolved).  The second-marriage spouse, therefore, thinks he or she is validly married and behaves as such.  He or she is then called a "putative spouse." This creates a whole new set of problems, which I will discuss in another post.

J. Michael Clay is a family law attorney in San Antonio, Texas.  His practice centers around all types of family law issues, such as divorce, annulment, child custody, child support, modifciation, enforcement and adoption cases.

J. Michael Clay is licensed to practice in all state courts in the State of Texas, and in federal courts in the Western District of Texas.

Not certified by the Texas Board of Legal Specialization.

Comments

[Mary]

I have a friend who was married to a man in Mexico. She later moved to the states and married another man (I think she thought the marriage in Mexico was not valid in the states). Husband 2 was abusive and kicked her out days before their child was born. She hasn't seen him since--8 or 9 years. Husband 1 passed away in Mexico in the last year or so. She wants to divorce husband 2 so she can marry current "husband 3" with whom she has lived for 6 or so years (and w/whom she has a child).

Section 6.203 says a marriage is void if performed while person was already married. So my question is: is friend's marriage to husband 2 void (remember that she was not living with husband 2 when husband 1 died and was in fact living with husband 3 when husband 1 died)? or does she need to initiate some proceeding to have it declared void? She lives in Dallas and marriage 2 was performed here. She has no idea where husband 2 is.

[Rod]

Is legal to marrie your first cousin in the state of Texas?

[law firm directory]

Being a representative of a law firm, reading an article and blogging and commenting on legal issues has always proved to be useful. To some extent, information given on such blogs and the comments and articles has benefited the victims facing complexities in term of legal issues and helps us also update our knowledge of what is happening around and what all complexities we should expect from our future cases.. It provides a great platform to discuss experiences and share knowledge.

[law firm directory]

Being a representative of a law firm, reading an article and blogging and commenting on legal issues has always proved to be useful. To some extent, information given on such blogs and the comments and articles has benefited the victims facing complexities in term of legal issues and helps us also update our knowledge of what is happening around and what all complexities we should expect from our future cases.. It provides a great platform to discuss experiences and share knowledge.

[C Smith]

What if the 2 parties in the marriage were already married to each-other, but in another country.. Would the Texas marriage be void?

[Denise]

I remarried in Texas before devorce was final in California,is my marriage to spouse number 2 voided... it did get finalize a month later...and if it is void two husband no.2 how do I make it valid...I reside in Texas now and been with this person for 25 years now...Do we have to get remarried again do I have to get an attorney to make this right....Your advice would be appreciated...

[cris]

i married my husband in may of 2005 he had previously been divorced. in december of 2005 his mother called him and told him his ex-wife had passed away from sickle cell. after talking with him more about it i found out that he never actually handled the divorce but she did. so recently i did a search and found two marriage records on him and no divorce records one marriage in florida to her and to me in texas but no divorce at all. is our marriage valid because at the time we married he was still married to his spouse?