South Carolina became a state in 1788, and at the time, and for many years after, divorce was not legal. Except for a brief period after the Civil War, the State of South Carolina didn’t allow divorce until 1950. For 71 years, it was the only state in the union where divorce was banned.
However, even with no divorce in South Carolina, a spouse could petition to have their marriage annulled. (See Goodyear v. Reynolds, 117 S.E. 538 (1923), where a spouse petitioned for an annulment for a marriage occurring in 1914).
In fact, South Carolina courts heard an annulment petition as early as 1844 (Foster v. Means, SC (1844)). Case law developed through the coming years. Additional statutes would not only legalize divorce but codify grounds for annulment and jurisdiction for the courts to hear annulment petitions.
Today, annulment is recognized in South Carolina. However, it remains limited in scope. A party seeking an annulment must prove that one of the lawful grounds exists. They must file their case in the appropriate court.
Our experienced divorce lawyers discuss annulment of marriage in South Carolina.
Understanding Marriage Annulment in South Carolina
What is an annulment?
An annulment is a declaration that a marriage never occurred. It is different than 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.
Grounds for Annulment in South Carolina
Recognized grounds for annulment in South Carolina include:
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 important, like mental health problems, impotence or 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 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. (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
Because South Carolina courts have the authority to determine the validity of a marriage, the procedure for getting an annulment is to petition the court. The person who wants the annulment files the petition.
A complaint 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 the legal grounds
- A request for determination of issues like child custody, support and property division
The other spouse can respond. 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.
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.
Contact Us About Marriage Annulment
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.
