What Are the Requirements for Annulment in Tennessee?
- At October 23, 2013
- By Miles Mason
- In Family Law, Property Division
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In this article, we discuss annulment laws in Tennessee, marriage annulment, annulment time limits, annulment vs. divorce, grounds, procedure, filing, terms of annulment, and how long after marriage can you get an annulment.
What Are the Requirements for Annulment in Tennessee?
Annulment in Tennessee Law: What is an annulment of marriage?
Annulment laws in Tennessee can be a tricky business. Annulment is not the same as divorce, but it often involves similar proceedings. If there are minor children, then there will be a determination of custody and child support. If there is property owned by both parties as “spouses,” then title will be changed to reflect their unmarried status (retroactive to acquisition whenever possible). If one party needs financial support, however, then the other will not be required to pay alimony. Although rare, support could be ordered for the economically dependent party under the doctrine of marriage by estoppel.
Annulment is a difficult legal concept for many people to wrap their minds around. When vows were exchanged at an official ceremony, does that not create a valid union? Typically, yes, but not always. Which is why the number of divorces granted each year in Tennessee far exceed the number of annulments granted.
Before we get started, be mindful of two things. First, annulment is not a fast track divorce. Second, having a marriage declared null and void is not easy to do. Tennessee laws only allow annulment in very limited circumstances.
What is the legal difference between an annulment and a divorce?
With annulment, the marriage was void from the very beginning; the court declares the marriage a nullity. With divorce, the legal marriage was valid from the beginning; the court dissolves the marriage by decree.
So you have some of the nuts and bolts of annulment law in Tennessee to compare with your own circumstances, the grounds for annulment and related family law concerns are discussed below.
Marriage Annulment in Tennessee: An Annulled Marriage Is a Void Marriage
What does it mean to get a marriage annulled under Tennessee? An annulled marriage is a void marriage. Some substantial defect existed at the time the marriage took place. The defect, as an impediment to marriage, was so repugnant in public policy terms that it rendered the marriage contract void and invalid. These defects are the grounds for annulment. A void marriage is no marriage.
Although annulment has been codified in Tennessee Code Annotated, annulment has a vibrant common law history. The grounds for annulment are buried in case law, not in the statute. T.C.A. § 36-4-119 is the court’s authority to void, or annul, the defective marriage:
“If, upon hearing the cause, the court is satisfied that the complainant is entitled to relief, it may be granted either by pronouncing the marriage void from the beginning, or by dissolving it forever and freeing each party from the obligations thereof, or by a separation for a limited time.” [Emphasis added.]
Annulment goes to the very heart of the marriage contract. When a court is asked by the aggrieved party to annul the marriage, it must determine whether the marriage contract was void from the beginning or voidable by the injured party. (The distinction between void and voidable marriages is covered later.)
Once annulled, it is as though the marriage never existed. Understand that the relationship between the parties is as real as it ever was, only the legality of their marriage was unreal.
Can you get remarried after an annulment?
Annulment is unique in domestic relations law. Once a marriage is nullified, the parties are free to marry other people. (Hopefully the defect that ended with annulment does not revive itself in a new marriage contract.) In that regard only, the annulment parallels a decree of divorce. See T.C.A. § 36-4-124.
Annulment vs. Divorce: Common Law Marriage Not Established in Tennessee
Tennessee law does not allow establishment of common law marriage in this state. The cohabitating couple from Memphis, for instance, who for the past 20 years have held themselves out publicly as common law husband and wife, does not raise their relationship to the level of a legal marriage. Too often this comes to light when a death benefit or inheritance is unavailable to anyone other than the surviving spouse from a legal marriage. Expectations of spousal death benefits and inheritance by intestate succession in Tennessee, among other things, should be discussed with an attorney.
Consider the 2005 case of Emmit v. Emmit, 174 S.w.3d 248 (Tenn. Ct. App. 2005), appeal denied. In Emmit, the wife was still married when she married again (bigamy). When the husband to whom she was legally married (but was not living with) died intestate, she sought to annul her second marriage in order to collect as the surviving spouse of her legal husband. She prevailed having overcome the legal presumption that her first marriage never ended in divorce. Her evidence? A “general search of the court records of divorce produced no record of a divorce” from the decedent. Therefore, the decedent died a married man and his lawful wife, despite her immoral behavior and selfish motive to collect from the estate, had simply been cohabiting with another man. This was despite the fact that, in the void marriage, the couple held themselves out to be husband and wife.
Annulment Process Catholic Church: Religious Annulment Is Not Legal Annulment
There is an important distinction between religious annulment and legal annulment. A religious annulment from the Catholic church is a declaration from a church tribunal that the marriage once believed to be valid according to church law was actually missing at least one essential element required by the church for a binding union. See U.S. Conference of Catholic Bishops. By contrast, a legal annulment under Tennessee civil law involves a judicial declaration that the marriage contract is null and void. Conceivably, circumstances might exist for both religious and legal annulment. In this article, however, we focus only on Tennessee annulment law.
Annulment Process in Tennessee: Void and Voidable Marriages in Tennessee Annulment Law
The best place to begin is with an brief overview of void and voidable marriages under Tennessee annulment law. When the aggrieved party has the option of seeking annulment or not, then the marriage is said to be voidable.
Despite how comfortable the parties may be in their relationship, though, some defects to the marriage render it void as against public policy. If the marriage is void ab initio, or void from the beginning, then the aggrieved party does not have the option of remaining married.
An example of the former, the voidable marriage, would be the shotgun wedding (“Marry my daughter or else …”). The groom may have married under duress, but he has the option of having it annulled later or staying in the marriage – it is his choice as the aggrieved party. An example of the latter, the void marriage, would be one party’s insanity (or both). An insane person lacks mental capacity, meaning that he or she is incapable of understanding what marriage is all about and, therefore, cannot give consent to marry. Both duress and insanity are legal reasons to annul marriage, as you will see.
Annulement Procedure, Complaint for Annulment in Tennessee, Grounds for Annulment, and Filing for an Annulment
Grounds for annulment in Tennessee must be alleged and proved before the court will nullify the marriage. Importantly, grounds for annulment differ substantially from the 15 grounds for divorce in Tennessee (there is some overlap, as with bigamy and incurable impotency).
In a divorce, the spouses should have very specific reasons for why they want the marriage dissolved. They may regret tying the knot, but the validity of their marriage is not in question. By comparison, grounds for annulment go to the validity of the marriage (not necessarily to the break-up of the relationship). There is nothing extraordinary for a couple with an illegal marriage to participate in marriage counseling, but a void marriage cannot be cured through couples counseling alone.
When can you get an annulment?
For the court to nullify the marriage, the union must be intrinsically defective. Therefore, the annulment grounds reflect circumstances that courts have recognized historically as defects sufficient to render the marriage void. Those reasons are based on society and procreation, public policy, and violations of law:
- Incurable impotence
- Failure to consummate the marriage
- Incestuous marriage
- Secret pregnancy at time of marriage
- Minor marries without consent from a parent or guardian
- Bigamy
- Mental incapacity or insanity
- Marriage by fraud
- Marriage under duress, force, or threat of physical harm
- Limited purpose marriage
Take a closer look at each of the grounds for annulment in Tennessee law.
- INCURABLE IMPOTENCE
The person’s incurable impotence must have existed at the time of the marriage, which means one of the parties could not perform sexual intercourse. Occasional impotence is not incurable impotence. Infertility is not incurable impotence.
One of the main purposes of marriage for most couples is to raise a family. If one party is incurably impotent and cannot have sexual intercourse with the other, then grounds for annulment exist. Ultimately, it may be up to the aggrieved party in this voidable marriage to decide whether alternatives to procreation – adoption, in vitro fertilization, surrogacy – might be acceptable or not, assuming that is the core issue.
Frigidity in marriage has been a hot topic for a very long time, centuries. Today, frigidity describes either party’s loss of interest in sexual relations. But loss of interest in sex after the marriage is not the same as incurable impotence at the time the marriage took place. Perhaps the following grounds for annulment, failure to consummate the marriage, are a more appropriate fit.
- FAILURE TO CONSUMMATE THE MARRIAGE
Consummating the marriage requires sexual intercourse, plain and simple. This is sometimes referred to as one party’s denial of conjugal rights. If the marriage was never consummated, then annulment is available to the aggrieved party.
- INCESTUOUS MARRIAGE
An incestuous marriage is grounds for annulment in Tennessee law. A marriage is incestuous when between family members who are too closely related by blood, or consanguinity. In Tennessee, a marriage between siblings, between a parent and child, between grandparent and grandchild, between aunt and nephew or uncle and niece, or between first cousins, for example, would be a void marriage and annulled. In fact, incest may also be a Class C felony under Tennessee criminal law. T.C.A. § 39-15-302.
Some marriages between relatives are completely legal. Consult an annulment lawyer if you are married to a not-so-distant blood relative.
- SECRET PREGNANCY AT TIME OF MARRIAGE
A woman’s secret pregnancy could be grounds for annulment, depending upon the circumstances. This would be a situation where the woman is pregnant at the time of the marriage, her condition being unknown to the husband, and he is not the biological father. This situation would create a voidable marriage with the husband having the option to seek annulment.
- MINOR MARRIES WITHOUT CONSENT FROM PARENT OR GUARDIAN
Minor children do sometimes marry and, quite often, those marriages are legitimate. In Tennessee the minor must be at least a 16-year-old to enter into a valid marriage and may only do so with parental consent or consent from a legal guardian. A person, male or female, must be at least 18 years of age to marry without a guardian’s or parent’s consent. What if one party was a minor and eloped without parental consent, deciding two years later that she wants out of the marriage? The marriage would be voidable and she, as the aggrieved party, would have the option of seeking annulment or staying in the marriage.
- BIGAMY
In Tennessee, a person can only be married to one spouse at a time. Until the first marriage ends in divorce, death, or annulment, the second marriage is void. Bigamy (and polygamy) is grounds for divorce as well as annulment. Furthermore, bigamy may be a Class A misdemeanor crime, although the reasonable belief that the first marriage ended in death, divorce, or annulment is a legal defense. T.C.A. § 39-14-301.
- MENTAL INCAPACITY OR INSANITY
When a party was temporarily or permanently insane or of unsound mind at the time the marriage took place, then his or her lack of mental capacity should render the marriage void. The person who is not capable of understanding the meaning of the marriage relationship because of a lack of mental capacity, who cannot understand the nature of marriage, cannot be said to have entered into it voluntarily and with knowledge. This general capacity to enter into the marriage contract is a requirement in Tennessee law.
- MARRIAGE BY FRAUD
There are many ways to defraud a person into marriage, the fraud being an inducement to marry. For annulment, that fraud must be material or substantial to the person’s decision to enter into marriage. Examples include, but are not limited to, assurance of great wealth, when in fact the person was a pauper. Promise to procreate, then refusing to have children. Misrepresenting paternity of an unborn child, knowing the husband-to-be is not the biological father. These material, fraudulent deceptions can render the marriage voidable at the option of the aggrieved party.
- MARRIAGE UNDER DURESS, FORCE, OR THREAT OF PHYSICAL HARM
A marriage must be voluntarily entered into. It requires consent. If a person is forced into a marriage, then there is no voluntariness and no real consent. The shot-gun wedding, threatening harm to a family member, or actual force against the person are all situations where the victim’s free will is overcome. These are examples of the kind of duress, force, or threat of physical harm that would render the marriage voidable at the option of the injured party.
- LIMITED PURPOSE MARRIAGE
An example of a limited purpose marriage is one between a U.S. citizen and a non-citizen for the single purpose of evading U.S. immigration laws. Such a marriage would be voidable by the aggrieved party and could result in the non-citizen’s deportation. To learn more about marriage and marital union for naturalization, take a look at U.S. Citizenship and Immigration Services.
As the grounds above clearly indicate, annulment is not a substitute for divorce. If you and your spouse entered into the marriage as two consenting adults and followed the legal formalities for a ceremonial marriage, then you are probably limited to filing for divorce or petitioning for legal separation.
Terms of Annulment: Typical Issues in Tennessee Annulment Cases
As with divorce, annulment in Tennessee can involve child custody, child support, and division of property. In very few annulment cases, support for the economically dependent party may be awarded, too, but it is not the same as alimony in a divorce. Let’s take a closer look at each of these family law issues in the annulment case, in the same order the court will examine them.
- Child Custody
Every annulment case where the parents have minor children will involve a determination of child custody. Custody proceedings follow the same court process for annulled marriages as they do for divorces and child custody cases between unwed parents. A permanent parenting plan will include a determination of legal decision-making authority (joint or sole) and a parenting time schedule. The parents may participate in mediation and an independent child custody evaluator may be assigned to the case, among other things. To learn more about the custody process generally, read the discussion on Child Custody Laws in Tennessee.
Legitimacy of Children After Annulment
Without more information from an experienced divorce lawyer, logic might lead a reasonable person to conclude that, if the marriage is illegitimate, then the children born into the annulled marriage must be illegitimate, too. That is not so! Legitimacy is not automatically destroyed as a consequence of the parents’ annulment. There are two Tennessee statutes that address this very situation.
The first statute is T.C.A. § 36-4-125 which provides that an “annulment or dissolution of the marriage shall not in any way affect the legitimacy of the children of the same.” [Emphasis added.]
The second statute provides a presumption of parentage under Tennessee law. T.C.A. § 36-2-304(a)(1) creates a rebuttable presumption that the husband is the child’s father when the “man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce …” [Emphasis added.]
- Child Support
There is little unpredictability with child support proceedings in annulment cases. In every family law case involving minor children, whether it be divorce, annulment, legal separation, or modification of child custody, there will be child support orders. One parent is the Primary Residential Parent (PRP) who receives support because the child lives with him or her most of the time. The other parent is the Alternate Residential Parent (ARP) who is ordered to pay support. Child support obligations are calculated using the Tennessee Child Support Guidelines. For information on the current guidelines and child support generally, read about Child Support Laws in Tennessee.
- Property
Property division in annulment cases is a little different than with divorce and legal separation. The parties have their separate property, but there is no marital property to equitably divide and distribute because the marriage was void. This may seem like a conundrum for the court, but it should not be. In annulment, the court attempts to restore the parties to the position they were in before the marriage took place – that is, to their premarital status. As to property acquired after the marriage date, the court will divide those assets and debts equitably between them for a reasonable, fair outcome. When substantial assets and debts are involved, as with a professional practice or other business interest, it would be prudent to seek specific legal advice from a Tennessee divorce lawyer.
Impact of Annulment on Property Owned By the Entireties
In Tennessee, the title to marital property can be held by spouses as tenants by the entireties which has the benefit of a built-in right of survivorship (upon the death of the first spouse, the surviving spouse gets title to the property). In effect, property held in tenancy by the entireties protects the asset from being used to pay one spouse’s sole creditor, at least during the other spouse’s lifetime.
Tenancy by the entireties is not an option for unmarried couples. With annulment, property originally titled to the spouses as tenants by the entireties converts to a tenancy in common with right of survivorship between the parties. See Knight v. Knight, 458 S.W.2d 803 (Tenn. Ct. App. 1970), cert denied.
- Alimony
Because there was never a marriage, there is no duty for one party to support the other, which means no alimony will be awarded in an annulment case. However, in a very few cases, Tennessee’s marriage by estoppel doctrine may apply to provide some form of support for the party to an annulment who was economically dependent upon the other.
Tennessee’s Marriage By Estoppel Doctrine
The marriage by estoppel doctrine has developed through court cases, not statutory law. This doctrine should be discussed with your attorney as its application is limited.
For the doctrine to apply, the couple must have tried to comply with the Tennessee marriage statute and, additionally, they must have believed their marriage was valid. Take a look at two different cases. In the first, the Tennessee marriage by estoppel doctrine did apply to protect the party to an invalid marriage. In the second, the doctrine did not apply to the invalid marriage.
Smith v. North Memphis Sav. Bank, 89 S.W. 392 (Tenn. 1905). The Encyclopedic Digest of Tennessee Reports on Marriage, Evidence, Doctrine of Estoppel (p.766) summarized the rule from Smith in this way: “Where plaintiff and deceased had lived together and recognized each other as husband and wife to the world for more than 25 years, deceased, if living, would be estopped from asserting that they had not been legally married.”
Consider the worker’s compensation case of Jones v. D. Canale & Co., 652 S.W.2d 336 (Tenn. 1983), which originated in the Chancery Court of Shelby County. In Jones, the woman was not legally married to her deceased partner. She knew the second marriage was invalid under Tennessee law and she knew that a divorce from her first husband was required for a second marriage to be valid. There was no “honest though mistaken belief” that she was married to her deceased partner, the worker. Both she and decedent knew they were not legally married and cohabitated for 25 years. The Tennessee Supreme Court affirmed the Chancery Court’s judgment. Because the couple made no attempt to comply with Tennessee law and because they knew a divorce from her husband was necessary for them to legally marry, the marital estoppel doctrine was inapplicable. Despite evidence that she was wholly dependent upon decedent for support and that there were no other dependents who could make a claim, she could not collect on her deceased partner’s worker’s compensation death benefit because she was not his “surviving spouse.”
The doctrine gives an unmarried couple, who otherwise believed themselves to be husband and wife, divorce remedies by presuming the marriage is valid, even though legally it is not. The doctrine is not available to those who are deliberately living amorally as unmarried cohabitants, even if they hold themselves out to be husband and wife in public. It takes more. There has to be something else going on, such as a genuine mistake of fact on the status of a prior divorce (paperwork that never got finalized, for example).
In the case of Guzman v. Alvarez, No. M2003-02902-COA-R3-CV (Tenn. Ct. App. 2005), the wife filed for divorce on grounds of her husband’s adultery. Both parties were “under a mistaken belief that Wife’s prior marriage had ended in an annulment.” The Tennessee Court of Appeals upheld the trial court’s application of marriage by estoppel where the wife believed her first marriage in Mexico had been annulled and, hence, did not count as a prior marriage:
Citing Stovall v. Memphis, No. W2003-02036-COA-R3-CV, “Tennessee has long recognized Marriage by Estoppel where ‘the parties have believed in the validity of their marriage and have evidenced that belief with cohabitation.’ … Generally, the courts of this state have limited the application of marriage by estoppel to circumstances where the party who is seeking to invoke the doctrine has attempted to comply with the statutory requirements of marriage. However, the doctrine may not be invoked by parties who knowingly enter into an invalid marriage … or ‘where the parties knowingly live together in an unmarried state.’ Lastly, as the doctrine involves a fact-intensive inquiry, marriage by estoppel has been said to apply in ‘exceptional cases.’” [Citations omitted.]
How Long After Marriage Can You Get an Annulment? What is the Time Limit for an Annulment?
There is no legal time limit for a Tennessee annulment. Even so, it seems to reason that the shorter the marriage, the more likely a judge is to grant an annulment. So how long after you get married can you get an annulment may depend on the facts and circumstances of your situation. Most experienced family law attorneys will recommend filing as soon as possible after learning of the particular deception or fraud. So, looking at this from another perspective, when is it too late to get an annulment? It is too late when a judge says it is too late.
Marriage Annulment Process: Tennessee Annulment Jurisdiction and Cooling-Off Period
When you read our discussion on divorce proceedings (Tennessee Divorce Process: How Divorces Work Start to Finish), note that the Tennessee court does not have jurisdiction over divorce unless at least one of the spouses has been a resident in this state for six months or more before the divorce complaint is filed. T.C.A. § 36-4-104. Annulment, however, does not have the same residency requirement. See Estes v. Estes, 250 S.W.2d 31 (Tenn. 1952).
Annulment Process How Long?
Lastly, before the Tennessee court can dissolve the marriage, divorce requires a 90-day cooling off period when the spouses have children and a 60-day cooling-off period when they do not. The cooling-off period is a time for reflection and, perhaps, reconciliation. By contrast, there is no such cooling-off period before the court can annul a void marriage. Annulment can be a tricky business, so talk to your lawyer.
