If your marriage is invalid or illegal under South Carolina law, you may be able to request an annulment. An annulment treats a marriage as if it never happened, and it can be an empowering way for someone to close a chapter and move on. The legal reasons you can use to ask a judge to annul your marriage include fraud, duress, bigamy, and lack of consent.
Additionally, you or your spouse may be able to undo your marital bonds if you were under 16 or did not have the mental capacity to get married when the wedding occurred.
The divorce lawyers at Turner Family Law have helped dozens of clients take back their lives by seeking to annul their unions with someone else. We are here to help demystify the legal requirements, prepare and submit the paperwork, and provide empowering answers to our clients’ questions.
Annulment vs. Divorce: Key Differences
An annulment in South Carolina is one way to end an invalid or voidable marriage. Instead of dissolving it or ending the marriage like a divorce, an annulment makes it as though it never occurred. South Carolina allows people to annul their marriage if the union (legally speaking) was invalid or void in the first place. For example, if two people under 16 get married, the marriage is invalid because they cannot legally marry each other.
Understanding Marriage Annulment in South Carolina
What is an annulment?
An annulment is a declaration that a marriage never occurred. It is different from a divorce, which ends a marriage. An annulment is a court order that a marriage never happened in the first place.
Can you get a marriage annulled in South Carolina?
Yes. South Carolina courts annul marriages. There are certain circumstances where a court may annul a marriage. One of the circumstances must be present in the case.
What is the South Carolina law for annulment?
S.C. Code § 20-1-510 et. seq. gives a court the authority to determine the validity of a marriage.
That includes stating that a marriage is void or voidable, declaring an annulment.
Legal Grounds for Annulment in South Carolina
The first part of the process for how to get an annulment in SC is to understand the legal grounds, or reasons, you can use to ask a court to declare your marriage invalid. Recognized grounds for annulment in South Carolina include:
- Fraud
- Duress
- Lack of consent and cohabitation
- Incest
- Bigamy
- Mental incapacity
- Being an underage person
Each of these grounds for annulment in SC has its own requirements. An attorney can help you learn more about these and determine if you can use one to end your union.
Fraud
If a party misrepresents themselves or their circumstances when entering into marriage, it may be the basis to have the marriage annulled. The misrepresentation must be about something significant like mental health problems, impotence, or the inability to have children.
It must be intentional fraud, rather than simply learning new information or events that unfold after the marriage. Misrepresenting wealth or social status is not grounds for annulment. See E.D.M. v. T.A.M., 307 S.C. 471 (1992), where the court denied an annulment on the basis of fraud where the court ruled there was insufficient evidence that the wife willfully misrepresented her sexual incapacity.
Duress
Duress can be grounds for annulment. In Phipps v. Phipps, 216 S.C. 248 (1950), a party sought an annulment on the grounds of duress.
The plaintiff claimed that he was forced into marriage by his wife’s family. At the court hearing, the plaintiff testified that the wife’s family threatened violence. However, the court found that the plaintiff exercised his own free will and was not coerced. It is the court that determines the facts and whether duress occurred.
Lack of consent, and no consummation or cohabitation
S.C. Code § 20-1-530 allows a court to declare a marriage contract invalid where the parties never cohabitated. The court must find that a marriage contract never existed because of a lack of consent. Cohabitation means living together in the same house regardless of sexual activity.
Incest
S.C. Code § 20-1-10 prohibits certain closely related people from entering into marriage. Incest is grounds for annulment. In addition, S.C. Code § 16-15-20 prohibits incest, or sexual relations between closely related persons by punishment of criminal law.
Bigamy
A marriage is void if either party has a living spouse. Legally, a marriage terminated because of bigamy has the same effect as an annulment. See Splawn v. Splawn, 311 S.C. 423 (1993), ordering an annulment and retaining jurisdiction to determine equitable distribution of joint assets. A court may award alimony, child custody, and child support when a marriage is void due to bigamy (Lukich v. Lukich, 379 S.C. 589 (2008)).
Mental incapacity
A mentally incompetent person may not enter a marriage contract (S.C. Code § 20-1-10).
Underage person
South Carolina law § 20-1-100 sets a minimum age for marriage of 16. Common law marriage of a person under 16 is void ab initio, which means it has no legal effect. Someone between ages 16 and 18 who resides with a parent or guardian must have their consent to get married (§ 20-1-250). A marriage may be declared void because a party is underage.
How To Get an Annulment in South Carolina (Step-by-Step Process)
The first step in filing for an annulment in South Carolina is to determine if you meet the eligibility requirements in the applicable law. If you believe you qualify, the next step would be to prepare and file the petition with the appropriate court. You can complete this paperwork yourself; however, you may benefit from working with an attorney. You would serve the legal documents on your spouse. Then, you and your spouse, if they respond, would go to court and negotiate a settlement to split your assets, if applicable.
Determine If You Are Eligible for an Annulment
Your first task in the annulment process is to see if you qualify for one. Examples of situations where the court may annul a marriage include:
- If you or your spouse were under 16 when you were married.
- If you and your spouse are close blood relatives.
- If you or your spouse were legally married to someone else at the time of your wedding.
The law has other criteria you can use to support a request to declare your marriage invalid. The requirements depend on what regulations are in effect at that time.
Prepare and File the Petition
Because South Carolina courts have the authority to determine the validity of a marriage, the procedure for getting an annulment begins with petitioning the court. The person who wants the annulment files the petition.
The petition must include the following:
- Date of marriage
- Place of marriage
- Current residence of each spouse
- Whether any children have been born
- Why the party is seeking an annulment and on what legal grounds
- A request for determination of issues like child custody, support, and property division
Once the petitioning spouse files the paperwork, they must serve it on the other spouse. One way to accomplish this is to have someone from the sheriff’s office deliver these documents. The other spouse can respond and argue against the annulment request.
Talk to an Attorney
Partnering with a lawyer can help you tremendously as you move through the annulment process. They can explain what to expect and guide you through how to get an annulment in SC. The attorney can also represent you in court and handle the annulment settlement negotiations. For example, they can help determine a fair way to divide your and your spouse’s property once the annulment is finalized.
Go to Court and Resolve Annulment Settlement
Even if spouses consent to the annulment, the court must find sufficient legal grounds to award it. The petitioning spouse must be prepared to prove the factual basis for the annulment. The court may decide important issues like child custody, child support, alimony, and property division. Each spouse may have legal representation in annulment proceedings.
If the judge approves your annulment request, you and your spouse will need to decide how to handle property distribution, child custody (if applicable), and alimony. You may negotiate these with your spouse with the help of your attorney in such ways as sending proposed agreements back and forth.
You may also participate in mediation, which allows you, your spouse, and your lawyers to resolve different legal issues without going to court. However, mediation may only be appropriate if you and your spouse are on good terms and you meet other requirements.
Effects of an Annulment: What Happens Next?
After the court grants the annulment, the marriage becomes invalid, the parties are no longer married, and it is as if the union never occurred. You and your spouse are legally able to marry other people. You would carry out whatever you agreed to in the property settlement and, if it applies, the child custody and support arrangement.
Alternative Options: What If You Don’t Qualify for an Annulment?
If you don’t qualify for an annulment, you may be able to seek a divorce. Some of the possible grounds for dissolving your marriage include adultery, physical cruelty, habitual drunkenness, and living separate and apart for at least one year without cohabitation. You must meet other eligibility requirements. For example, at least one spouse must have lived in South Carolina for at least one year before the divorce case begins.
Contact Turner Family Law About Getting a Marriage Annulment in South Carolina
Are you wondering if you can get an annulment? Do you need to know if annulment is right for you? Are you seeking qualified legal representation for your annulment proceeding?
Contact our divorce lawyer at Turner Family Law in Greenville to talk about your case.
Frequently Asked Questions (FAQs)
What is the effect of annulment?
If a marriage is annulled in South Carolina, it is as though it never happened. Granting an annulment may have surprising effects. For example, in the Joye v. Yon case, a court reinstated alimony payments after a subsequent marriage was annulled on the grounds of bigamy.
Is there a statute of limitations on annulment in South Carolina?
No. As long as one of the grounds for annulment can be proven, a court may grant an annulment.
Who has the burden of proof for annulment in South Carolina?
The party seeking the annulment has the burden of proof in South Carolina. The legal standard is a preponderance of the evidence.
