CAN I GET AN ANNULMENT IN SC?

Can you get an annulment in SC?

You can, but your situation must fit into one of the statutory grounds for an annulment under SC law. Annulments are not a quick and easy solution to an ill-advised marriage, and the grounds for an annulment in SC can be difficult to prove…

Below, we’ll discuss when you can get an annulment in SC, what the specific grounds for annulment are under SC law, and what an annulment means.

If you believe that you have grounds for an annulment or if you are considering a separation and divorce from your spouse, you should contact an experienced SC divorce attorney on the Axelrod team immediately to get advice based on your individual circumstances and to protect your rights as you move forward.

WHAT IS AN ANNULMENT?

An annulment is a legal action that asks a court to declare your marriage null and void.

What does that mean?

It means that it is as if the marriage never happened. Whereas a divorce means that 1) you were married, and 2) you were then legally divorced, if you get an annulment it means that the original “marriage” was not a legal marriage after all – it is like a pronouncement from the court that you were never married…

So how do you get an annulment in SC and what are the grounds that you must prove?

WHAT ARE THE GROUNDS FOR AN ANNULMENT IN SC?

The grounds for annulment in SC are not collected together in an easy-to-find list under SC law. Some are contained within Title 20 of the SC Code (in different statutes) while others are found in SC’s appellate opinions.

Lack of Cohabitation

You can get an annulment if you do it within four days of your marriage, right? Within a week?

Wrong –

There is no “time limit” for an annulment, and it does not matter how many days have passed since your marriage. Lack of cohabitation (living together) is a ground for an annulment in SC, but it does not matter how much time has passed.

SC Code Section 20-1-530 authorizes the Court to declare a marriage invalid if the parties have never lived together:

If any such contract has not been consummated by the cohabitation of the parties thereto the court may declare such contract void for want of consent of either of the contracting parties or for any other cause going to show that, at the time the supposed contract was made, it was not a contract.

20-1-530 also authorizes the Court to declare a marriage invalid “for any other cause” that demonstrates that the marriage contract was not valid. What are some other valid grounds for annulment?

Inability to Engage in Intercourse

The SC Supreme Court found in EDM v. TAM that “concealment of a known sexual dysfunction” may be a type of fraud that would justify an annulment, but they did not decide that question because, in EDM, the Court found that the wife did not conceal her psychological issues that prevented her from engaging in sex.

A “failure to consummate the marriage” is not grounds for an annulment in SC, although 1) a failure to live together or 2) intentional concealment of an inability to have intercourse might be grounds for annulment.

Incest

SC Code Section 20-1-10 prohibits marriage between two persons who are closely related:

(B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or another man.

(C) No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or another woman.

If a couple with a relationship listed above marries, that marriage is invalid and either party can ask the Court for an annulment at any time.

Incompetency

A person who is deemed “mentally incompetent” is also prohibited from marriage by SC Code Section 20-1-10:

(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.

Note that a person cannot be prevented from marrying simply because they are a mental health patient in a facility unless they have been adjudicated incompetent by a court:

Unless a patient has been adjudicated incompetent, no patient may be denied the right to:

…(6) marry or divorce;…

Same-Sex Marriages

SC law still prohibits same-sex marriages, but it is an unconstitutional and unenforceable prohibition.

The US Supreme Court’s 2015 decision in Obergefell v. Hodges made it clear that it is a violation of Fourteenth Amendment Due Process for a state to deny a marriage license to a same-sex couple; therefore, it is no longer a ground for annulment in SC or any state in the country.

Bigamy

A bigamous marriage is void by law, as if it never happened, and can be annulled by the Court under SC Code Section 20-1-80:

All marriages contracted while either of the parties has a former wife or husband living shall be void. But this section shall not extend to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, not to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court.

Only three exceptions are provided under SC law:

• If the prior marriage ended in a legal divorce;
• If a husband or wife is absent for five years or more and their spouse does not know where they are or whether they are living or dead; or
• If the prior marriage has been annulled by the court (but see Brown v. Sojourner – the annulment of a prior marriage may not be enough if there was no opportunity to be heard, the annulment was in a different court, and the evidence presented in the prior annulment was insufficient).

“Shotgun Weddings”

Duress may be grounds for an annulment in SC, but it is rare and would be difficult to prove.

For example, in Phipps v. Phipps, a husband was denied an annulment although the pregnant bride’s brother threatened to shoot him and the bride’s father threatened to throw him in the river with a rock tied around his neck:

“Q. Goes in where? A. In the courthouse. He comes back out and he said: ‘You are a little bit smarter than I thought you were.’ He was speaking to me. Preston said: ‘You know what we should do with him?’ I said: ‘What, shoot me?’ He said: ‘That’s exactly right.’ Mr. George said: ‘This is too good for him. We should take him to the river and tie a rock around his neck and toss him in.’”

Although this could be considered duress and grounds for an annulment, it was not in this case because the groom had plenty of opportunities to escape before the wedding:

If duress, as is contemplated by the law, was at any time during the negotiations exercised by respondent or her family, it must clearly have dominated throughout the transaction to such an extent that appellant could not and did not act as a free agent. The violence or threats must have been of such a nature as to inspire a great fear of bodily harm. There is ample evidence to the contrary in the case at bar. Campbell v. Moore, 189 S.C. 497, 1 S. E. (2d) 784.

Fraud

Fraud may also be grounds for an annulment, although it would be a rare situation.

For example, in Jakar v. Jakar, cited by the SC Supreme Court in EDM v. TAM (see above), the Court held that most fraudulent representations are not grounds for annulment unless they involve something that is “essential to the marriage relation” that makes the performance of the duties of marriage impossible:

False representations regarding one’s character, social standing, or fortune do not constitute fraud sufficient to annul a marriage. Jakar v. Jakar, 113 S.C. 295, 102 S.E. 337 (1920). Husband claims, however, sexual capacity qualifies as a ground for annulment under Jakar as “something essential to the marriage relation … making impossible the performance of the duties and obligations of that relation.” 102 S.E. at 339.

This means, as the Court suggested in EDM v. TAM, where a spouse actively conceals an inability to have intercourse or bear children it could be grounds for an annulment. There are no reported SC opinions granting an annulment on these grounds, however.

GOT AXELROD?

If you believe you have grounds for an annulment or if you are considering a divorce from your spouse, call your SC divorce attorney at Axelrod and Associates now at 843-353-3449 or send us a message through our website to find out how we can help.