How do you get an annulment in SC?
For most people, you don’t. You can’t get an annulment based on the short duration of your marriage, and you can’t get an annulment because the marriage wasn’t “consummated,” although you can get an annulment if you have never cohabited with your spouse.
There are only a few grounds for annulment, and they can be difficult to prove. For example, while you can find SC appellate opinions that authorize annulments for fraud or duress, you won’t find any SC appellate opinions that granted annulments for fraud or duress. That’s not to say that you’re stuck in your marriage. Divorce is the next option you would pursue if that is your wish.
In this article you will learn:
- The difference between annulment and divorce,
- The grounds for annulment in SC, and
- How you go about getting an annulment if you qualify.
Annulment v. Divorce
What’s the difference between annulment and divorce?
Divorce terminates a marriage, which assumes that there was a marriage in the first place. An annulment, on the other hand, is a declaration from the court that there never was a marriage – although the parties attempted to enter a marriage, it was void from the start.
What makes a marriage void? What are the grounds for an annulment in SC?
Grounds for an Annulment in SC
There are several grounds for annulment in SC – and several myths that we will address below. Technically, you don’t “get” an annulment – if you qualify for an annulment, your marriage was never valid in the first place, and what you need is a court to declare that the marriage never happened.
Duress can be a valid ground for annulment, but it’s not as simple as you might think. For example, how about a “shotgun wedding?”
If someone literally threatens you with a gun, the marriage is invalid, right? The SC Supreme Court says that duress is grounds for an annulment, but what constitutes duress?
In Phipps v. Phipps, the court found that there was no duress where:
- Husband got Wife pregnant before they were married;
- Husband was physically restrained by Wife’s father and two of her brothers when her family learned she was pregnant;
- Wife’s father and brothers drove Husband to the courthouse to get a marriage license;
- Wife’s father and brothers threatened to shoot Husband and to tie a rock around his neck and throw him into a river unless he married Wife; but
- Husband had ample opportunity to escape that evening before the marriage.
Because the husband did not run when he had the opportunity, he was not under duress at the time of the marriage, and he was not entitled to an annulment.
Fraudulent representations as to “something essential to the marriage relation,” or fraudulent representations as to something that makes the “performance of the duties and obligations” of the marriage relation impossible or “dangerous to health and life” are grounds for annulment in SC, although there are no appellate opinions in SC that grant an annulment on these grounds.
In Jakar v. Jakar, 113 S.C. 295, 102 S.E.2d 337 (1919), the SC Supreme Court held that false representations as to “character, social standing, or fortune,” including concealment that a husband had served time in prison, are not grounds for annulment.
In EDM v. TAM, the SC Supreme Court denied a husband’s request for an annulment where his wife was incapable of having sex, because the husband knew about the incapacity before they were married. Presumably, if an inability to have sex is concealed prior to marriage, that would be grounds for an annulment.
If your spouse was already married to someone else before you married them, your marriage is void and you are entitled to an annulment in SC.
SC Code Section 20-1-80 says that “marriages contracted while either of the parties has a former wife or husband living shall be void,” unless:
- The former spouse has been absent for at least five years and the spouse does not know if they are still living;
- The former marriage ended in divorce; or
- The former marriage has been declared void by the courts.
Although a marriage is valid when a prior marriage has been declared void by the court, SC courts have held that this cannot be used as a defense to a current action for an annulment based on bigamy, unless the prior marriage was declared void before the current marriage.
In Lukich v. Lukich, for example, the SC Court of Appeals granted a husband’s annulment action for bigamy even though the wife obtained an annulment of her previous marriage while the current annulment action was pending.
“Because Wife’s annulment [of her previous marriage] was not granted until after she contracted for marriage with Husband, the annulment [of the previous marriage] does not validate her marriage with Husband.”
If a person is mentally incompetent, they do not have the capacity to enter a marriage contract. This could be grounds for an annulment, but SC Code Section 44-22-80 notes that a person cannot be denied the right to marry unless they have been adjudicated incompetent.
The minimum age to marry in SC is 16. Children under the age of 16 do not have the capacity to enter a marriage contract, and any marriage entered before the age of 16 is “void ab initio.”
Note that if a person is between the ages of 16 and 18 and they live with a parent or guardian, the parent or guardian must provide a sworn affidavit giving their consent to the marriage, although the law does not say the marriage would be void otherwise.
Is incest grounds for an annulment in SC?
SC law prohibits marriage to any person who is a close relative, including parents, grandparents, stepparents, grandchildren, children, aunts, and uncles (cousins are okay), and any purported marriage that violates this statute is void and subject to annulment.
No Consummation or Cohabitation
You can get an annulment within the first week of marriage, right? What if you haven’t had sex, and therefore haven’t “consummated the marriage?”
Neither of these statements are true under SC law. It does not matter if the husband and wife have sexual relations after the marriage ceremony. A failure to “consummate” the marriage is grounds for an annulment, but SC law defines consummation as “cohabitation of the parties.”
If the couple has not lived together, the marriage is not “consummated,” it is void, and an annulment may be granted – although even one night together would be considered cohabitation for purposes of denying an annulment.
How Do You Get an Annulment in SC?
First, consult with an experienced SC divorce attorney who can review your case and determine whether you have valid grounds for an annulment.
There is no time limit to file an action for an annulment – if a marriage is void, it is void regardless of how much time has passed.
Your attorney will:
- Review your case and obtain records of the previous marriage;
- Gather evidence to prove the circumstances that justify your annulment;
- File a Complaint for annulment and serve the Complaint on your spouse; and
- Present your case to the family court after your spouse has had an opportunity to respond.
A hearing will be scheduled after your spouse responds to the lawsuit and any formal discovery is completed, where your attorney will help you to present the evidence that entitles you to an annulment.
Questions About Annulments in SC?
If you believe that you have grounds for an annulment, or if you have questions about whether you are entitled to an annulment, contact the divorce attorneys at Templeton, Mims & Ward at (843) 891-6100 or click here to send us an email.