Cultural misconceptions regarding annulment

Posted Tuesday, August 7th, 2012 by Gregory Forman
Filed under Divorce and Marriage, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

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.

4 thoughts on Cultural misconceptions regarding annulment

  1. Linda says:

    Had an interesting case a while back in which an ex-husband filed a motion to implead into my annulment case claiming he had an interest in the matter: if my client were granted an annulment, his alimony would resume. . .I believe either Stuckey’s book or the annotations actually referred to a case similar thereto, but evidently neither his counsel nor the Court was familiar with that case. . .it’s always interesting how many people come in wanting their marriage annulled! Thanks for the blog, Greg, helpful to have all this in a nutshell. . .

  2. Rob Papa says:

    What does an annulment do to previously filed joint tax returns claiming tax benefits for filing as a married couple? Does an annulment necessarily lead to having to file amended returns and the consequences of same? What if only one of the parties wants to file an amended return?

  3. Bob Polk says:

    I have probably averaged 1 annulment a year for the last 25 years. They are more common than you think. Like the articles Greg!

    1. The closest I have come to achieving an annulment is when I represented a 20 year old seabee who had “married” an already-married stripper. This was very early in my career when Charleston had a Naval yard and a large part of my clientele were seabees and strippers.

      At some point in the case opposing counsel, Allen Badger, calls me up to let me know that my client is still having sex with her client. “Why is he doing that if he wants an annulment?,” Allen–quite understandably–quarries. “Because he’s a 20 year old seabee and she’s a stripper who’s willing to have sex with him,” I answer, with my voice trying to convey that the answer is obvious to any man alive if not so obvious to most women.

      Eventually they reconciled. I would give odds on a bet that their marriage didn’t last a decade.

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