Breeding & Henry, LLC

Annulment is fundamentally different from divorce

Annulment is a process by which a marriage is declared void from the beginning through judicial action. This is fundamentally different from divorce proceedings, in which a marriage is terminated on the date of judgment on the dissolution of marriage. An annulment essentially means that a valid marriage never truly existed at all.

Tennessee distinguishes between two types of annulments, "void" and "voidable." Brown v. Miller, 29 S.W.3d 491 (Tenn. Ct. App. 2000). A marriage will be declared "void" if one of the parties was already married, the parties are within prohibited degrees of kinship, or the marriage is otherwise prohibited by law. Id. Meanwhile, a marriage is "voidable" for a number of reasons, including:

(1) when either party was insane; or (2) the complainant was under duress; or (3) was under the age of consent; or (4) when the consent was obtained by force, or fraud, and was given by mistake; or (5) when the defendant was impotent; or (6) when the woman was pregnant by another man without the knowledge of the complainant; or (7) when, for any other reason, the marriage was not binding on the complainant . . .

Id.

Tennessee courts have also determined, in Brewer v. Miller, that a marriage is voidable if it is never "consummated" by the parties. E.g., Brewer v. Miller, 673 S.W.2d 530 (Tenn. Ct. App. 1984).

For legal purposes, "consummation of marriage" is defined as "[t]he first postmarital [sic] act of sexual intercourse between a husband and wife." Black's Law Dictionary (10th ed. 2014) available at Westlaw BLACKS. Further, "intercourse" is defined as "[p]hysical sexual contact, esp. involving the penetration of the vagina by the penis." Id.

This may be clear for heterosexual couples seeking an annulment, but it is much less clear for homosexuals, and there are no Tennessee court rulings on the matter. While the definition seems to suggest that it is specific to heterosexual couples only, the inclusion of the phrase "physical sexual contact" would seem to apply more broadly to homosexual couples as well. Although annulment cases themselves are somewhat rare, and even more so on the grounds of failure to consummate the marriage, this issue may eventually arise in court, and interpretation of these definitions will certainly be an interesting aspect.

Despite the fact annulment is only available in special circumstances, there are situations that may arise in which a couple's grounds for separation fall under one of the categories to be granted an annulment. Not only does pursuing an annulment avoid ever recognizing that a marriage existed, but it also circumvents divorce proceedings altogether. Because annulment is such a complicated issue, the assistance of an attorney is vital in determining whether the process may apply.

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