An annulment, in contrast to a divorce, treats a marriage as though it never happened. Folks often contact me seeking an annulment but, in close to two decades of family law practice, I cannot recall ever obtaining an annulment for a client. Except for marriages that are void as a matter of law, the grounds for annulment are few and it isn’t easy to prove those grounds.
Contrary to popular belief, a short marriage–even a very short marriage–does not create grounds for an annulment. While lack of cohabitation is a ground for annulment (See S.C. Code § 20-1-530), even one night together is sufficient to create a valid marriage. I once had a client seek an annulment because she and her husband, both of whom were in the military, got married but after the wedding night their assignments kept them apart. This one night together was sufficient to deny her the annulment. It might be good policy if marriages came with a thirty-day return policy but they don’t.
Duress, such as a “shotgun wedding,” can be a ground for an annulment. In the case of Phipps v. Phipps, 216 S.C. 248, 57 S.E.2d 417 (1950) the pregnant bride’s brother threatened to shoot the prospective groom (for added effect, the bride’s father threatened to tie a rock around his neck and throw him in the river) if he backed out of the wedding. Still the groom was denied his annulment because he had an opportunity to escape but failed to do so.
While fraud can be a basis to annul a marriage, the fraud cannot be in the inducement to marry but must be on an issue essential to the performance of marital duties. As explained in Jakar v. Jakar, 113 S.C. 295, 102 S.E.2d 337 (1919) (citations omitted):
The [marriage] contract, from its peculiar nature and on general grounds of public policy, the law regards as especially sacred and inviolable. It cannot be voided or set aside on the ground of fraud, except on the most plenary and satisfactory proof of deceit and imposition, touching matters which constitute the essentials of the marriage relation. False representation of a party as to his character, social standing or fortune do not constitute such fraud on the opposite party as to avoid a marriage induced thereby, even though he conceal the fact that he has served a term in the penitentiary. The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation–of something making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life.
Even the inability to engage in penile-vaginal intercourse may be insufficient to obtain an annulment. In E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992), husband was denied an annulment where wife was incapable of engaging in such intercourse. The Supreme Court noted that wife had been unaware of this sexual incapacity prior to the marriage (thus there was no fraud), that she occasionally engaged in oral sex, and that the parties remained together two years after their wedding.
There appear to be no reported South Carolina appellate opinions authorizing an annulment on the basis of fraud or duress. In other states fraudulent representations regarding insanity or concealment of insanity, known impotency, known sterility and an inclination of have children contrary to an antenuptial agreement have been bases for an annulment.
A marriage can be annulled if one or both parties lacked the capacity to marry. Marriages between persons too closely related to legally marry (See S.C. Code § 20-1-10) are void and subject to annulment. Ditto for marriages involving mentally incompetent persons. Id. However someone must first be adjudicated incompetent before being denied the right to marry. S.C. Code § 44-22-80. Failure to meet age requirements (S.C. Code § 20-1-100) renders a marriage void. Same sex marriages are currently void. S.C. Code § 20-1-15. If one party to a marriage is already married to someone else at the time of the wedding (i.e., a bigamous marriage), this is grounds for an annulment. S.C. Code § 20-1-80. This is so even if the prior marriage is later annulled. Lukich v. Lukich, 368 S.C. 47, 627 S.E. 2d 754 (Ct. App. 2006), a’ffd, 379 S.C. 589, 666 S.E.2d 906 (2008).
Perhaps, given the paucity of annulled marriages in South Carolina case law, it should not be surprising that none of my clients have yet obtained one.
A shout-out to Roy Stuckey, whose Marital Litigation in South Carolina (4th Ed.) was invaluable in researching this blog.