Frequently Asked Questions Regarding Void Marriage in Texas

The following are answers to some of the most frequently asked questions about Texas void marriages. The answers are general in nature and are designed to help you better understand when a marriage is considered void in Texas.

The law in the individual circumstances of your case may vary and may affect the results in your case. This chapter will also lightly cover what happens if there are also children or property involved in case.

Subsequent blogs will cover frequently asked questions regarding divorce, child custody, child support, property division, and alimony.

What is a void marriage?

A void marriage is a marriage unlawful, not recognize, or invalid under the laws of Texas. A void marriage is one that was invalid from the very beginning.

How is a void marriage different than a voidable marriage?

A void marriage is a marriage that never existed. A voidable exists until the courts have annulled it.

What is a suit to declare a marriage void?

A suit to declare a marriage void is a legal procedure where a court determines if a marriage is determined to be void from the very beginning.

A court will look and consider if there are facts that prevent a valid marriage from being created.

If there are facts that prevent a valid marriage it as though the marriage never happened.

The big difference between an annulment and a void marriage is that spouses cannot otherwise agree that the marriage is valid.

What is a Putative Spouse?

A putative spouse is person who:

  1. is a marriage entered into in good faith
  2. had the good faith belief that the marriage was valid but
  3. the marriage was invalid under the law because of some legal flaw to the marriage

An example of a legal flaw that would invalidate a marriage would be the existence of a prior marriage. Texas recognizes the putative spouse doctrine to aid in these types of situations.

What is a putative Marriage?

A “Putative Marriages," is a marriage that is entered into in good faith by one spouse but that is invalid because of an unknown obstruction to the person claiming to be a spouse.

The "putative marriage doctrine" is used in Texas courts to correct an injustice which might otherwise occur if a marriage is believed to be valid by one or both parties but is deemed void.

Texas case law suggests that the most common impediment is the existence of a prior marriage of one party to a third party.

Putative marriage exists most commonly arises in two circumstances:

  1. as a result of a divorce proceeding where one spouse challenges the validity of the marriage; and
  2. as a result of the death of a spouse where a putative spouse and a legal spouse claim survivorship rights in the estate of the decedent.

As such the doctrine works as a protective mechanism for innocent persons. The critical distinction is that the marriage itself is not rendered valid, rather, the doctrine allows the innocent party certain property rights in the estate created during the relationship.

A putative spouse has all the rights, incidents and privileges pertaining to a legally valid marriage, including the right to an equitable division of all property acquired during the relationship in:

  1. a suit for divorce or
  2. in a suit to declare a marriage void.

Can a Putative Spouse get alimony?

Yes, and Maybe. Section 8.060 of the Texas Family Code states “In a suit to declare a marriage void, a putative spouse who did not have knowledge of an existing impediment to a valid marriage may be awarded maintenance if otherwise qualified to receive maintenance under this chapter.”

What if there are children or property involved?

As with a divorce and an annulment If there are children adopted by or born to the parents, a “Suit Affecting the Parent-child Relationship (SAPCR)” must also be included with the suit to declare a marriage void petition. This SAPCR will take care of the children issues.

What if is there is property?

If a spouse is found to be a putative spouse, the spouse would be entitled to the same just and right division of property as any other spouse. Davis v. Davis, No. 01-12-00701-CV, 2014 WL 890899, at *6 (Tex. App. Mar. 6, 2014)

When making this consideration a court will consider whether a spouse:

  1. entered marriage in good faith
  2. and whether the marriage is invalid by reason of an existing impediment on the part of one or both parties or
  3. Married the other party knowing facts that would make the marriage void and therefore the relationship is “meretricious.”

Putative Spouse Relationship

The effect of a putative marriage is to give the putative spouse, who acted in good faith, rights to property acquired during the marital relationship that are analogous to those rights given to a lawful spouse.

In summary, putative spouses have the same property rights as a divorcing spouse and including for spousal maintenance if they would otherwise be eligible.

Meretricious Relationship

A meretricious relationship or a ‘live-in’ relationship is one in which neither one of the individuals has a good faith belief that they are entering into a marital relationship.

Each party is entitled to the property acquired during the relationship in proportion to the value that his or her labor contributed to its acquisition.

A meretricious relationship is treated differently than a putative spouse. Meretricious spouses are not eligible for spousal maintenance.

How does a court figure out if a spouse is a putative spouse?

A good faith belief by one or both parties that a valid marriage exists is is perhaps the most import requirement to a Court finding a putative spouse.

Good faith consists of being ignorant of the cause that prevents the formation of a valid marriage. Generally good faith may be presumed when a spouse is unaware of a prior undissolved marriage. However, an adverse party could raise the question of the reasonableness of a spouse’s ignorance.

Texas courts have considered some of the following evidence in determine if a spouse had a good faith belief in a valid marriage:

  1. Marriage license
  2. Marriage ceremony
  3. whether the “spouses” lived together
  4. Purported divorce documents

Residency - How long do I have to live in Texas to file a suit to declare a marriage void?

The same residency requirements to file for a divorce in Texas do not apply to suits to declare a marriage void.

Under the Texas Family Code Section 6.307(b)

To be able to file this lawsuit in Texas to declare a marriage void, either

  1. the purported marriage was contracted in this state; or
  2. either party is domiciled in this state.

Jurisdiction and Venue - Where can I file a suit to declare a marriage void?

As mentioned in the above question under the Texas Family Code Section 6.307(b)

To be able to file this lawsuit in Texas to declare a marriage void, either

  1. the purported marriage was contracted in this state; or
  2. either party is domiciled in this state.

In the case of a divorce a spouse can only file in a county where one of the spouses has lived for at least 90 days. However, this is not a required in a lawsuit to declare a marriage void.

The Texas divorce venue statute does not apply to suits for annulment or lawsuits to declare a marriage void Garcia v. Garcia, 232 S.W.2d 782, 783 (Tex. Civ. App. 1950).

However, when filing a lawsuit to declare a marriage void, you will probably be limited to a court that can decide divorce cases. Even though filing this lawsuit in any county in Texas may be an option for convenience sake I would suggest filing it in the most convenient county for you.

Waiting Period – Is there a mandatory waiting period after filing a petition to declare a marriage void?

Under Section 6.702(b) of the Texas Family Code “A waiting period is not required before a court may grant an annulment or declare a marriage void other than as required in civil cases generally.”

Although, there is not mandatory waiting period it is not likely grant your request right away. This is because of a number of reasons including:

  1. The courts case load
  2. Whether or not your lawsuit is contested

You should be prepared that case could take a few weeks or months.

What is the difference between a divorce and a suit to declare a marriage void?

A divorce is the lawsuit you file in order to end a valid marriage.

A suit to declare a marriage void is the lawsuit you file for a court to consider if marriage was or was not valid from its beginning.

If the court finds that there was not a valid marriage it will declare that the marriage never legally existed.

What is the difference between a suit to declare a marriage void and an annulment?

A suit to declare a marriage void and an annulment are similar in that they both focus on reasons why a marriage is not valid marriage from its inception.

However, they are different. A void marriage is automatically not a legal or valid marriage without a court decision.

The parties to a void marriage cannot agree that a void marriage is legally valid marriage. With an annulment the parties to the marriage have a choice.

There are specific grounds for void marriages and separate ones for annulments under the Texas Family Code.

What are the legal grounds for a suit to declare a marriage void?

In Texas Family Code lists several grounds under which a person can file a suit to declare a marriage void including:

  1. Incest
  2. Bigamy
  3. One party is under 18 years of age
  4. The spouses are current or former stepchild and stepparent

What are the requirements for declaring a marriage void on the grounds of incest?

Under Texas Family Code Section 6.201 a “marriage is void if one party to the marriage is related to the other as:

  1. an ancestor or descendant, by blood or adoption;
  2. a brother or sister, of the whole or half blood or by adoption;
  3. a parent's brother or sister, of the whole or half blood or by adoption; or
  4. a son or daughter of a brother or sister, of the whole or half blood or by adoption.

In other words, the marriage is void the parties are related by blood or adoption in the following ways:

  1. ancestor or descendant
  2. half or whole brother or sister
  3. half or whole aunt, uncle, niece, or nephew

What are the requirements for declaring a marriage void on the grounds of bigamy?

Under Texas Family Code Section 6.202 states that:

(a) A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.

Can my void marriage because of bigamy later become valid?

Yes:

Under Texas Family Code Section 6.202 states that:

  1. The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

Essentially what happens is that once the impediment to a valid marriage is taken care of the prior marriage the void marriage is validated by turning into a common-law marriage.

The common-law marriage begins on the day the previous marriage has legally ended.

What are the requirements for declaring a marriage void on the grounds of one party being a minor?

Under Texas Family Code Section 6.202 states that:

A marriage is void if either party to the marriage is younger than 18 years of age, unless a court order removing the disabilities of minority of the party for general purposes has been obtained in this state or in another state.

This section of the family code was amended in the legislative update in 2017 changing the age from 16 to 18.

What are the requirements for declaring a marriage void on the grounds of the spouses being former or current stepchild and stepparent?

Under Texas Family Code Section 6.206 states that:

A marriage is void if a party is a current or former stepchild or stepparent of the other party.

Are marriages between two people of the same sex a void in Texas?

No.

The Texas Family Code Section 6.204 says that a marriage between two people of the same sex void.

However, the United States Supreme Court in 2015 ruled in the case “Obergefell vs. Hodges” that same sex marriages are legal.

The Supreme Court overruled then existing Texas law making Texas Family Code Section 6.204 Void.

The Obergefell vs. Hodges, decision applies to everyone in Texas and the United States.

What if I do not meet any of the grounds for void marriage? What can I do?

If your situation does not qualify for a void marriage, you may well qualify for either:

  1. divorce or
  2. an annulment

Please read one of our divorce or annulment blogs for more information.

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Other Articles you may be interested in:

  1. Frequently Asked Questions Regarding Texas Annulment
  2. 10 Facts You Never Knew About Texas Annulment
  3. How an annulment is different than a divorce in Texas
  4. Frequently Asked Questions Regarding Common Law Marriage and Divorce
  5. Frequently Asked Questions Regarding Texas Marriage
  6. Frequently Asked Questions in Texas Divorce Cases
  7. 15 Myths About Divorce in Texas
  8. 9 Questions to Ask Yourself and the Divorce Lawyer Before You Hire Them
  9. Common Questions about Texas Prenuptial and Marital Agreements
  10. Should I sign a Texas Premarital or Prenuptial Agreement?
  11. My Fiancé wants me to sign a Texas Prenup. What should I do?
  12. Making Postnuptial Agreements Stick in a Texas Divorce
  13. Can I sue my spouse's mistress in Texas?

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Our Divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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