Are you eligible for an annulment rather than a divorce? As with many states, divorce in South Carolina has steadily increased. From 1970 to 2000, divorce rates more than doubled, from 3.7% to 7.8% per 1,000 couples. For many, ending the relationship is an unfortunate reality. If you’re considering ending your marriage,there are the major concerns about children, child custody and your financial future. While a divorce is the normal way of ending a marriage, what you may not know is that in South Carolina divorce is not your only recourse. There are circumstances that may allow you to file for an annulment instead of a divorce. A consultation with a South Carolina divorce lawyer will help you figure out if you have grounds for ending the marriage and the best options in your situation.
How is an Annulment Different from a Divorce?
An annulment is a way of declaring a marriage null and void. It’s a way of saying the marriage never happened, since it was invalid at its inception. After an annulment in South Carolina, both spouses can remarry. With a divorce, there is a record of the marriage and you may be entitled to various benefits form the marriage that are not available if the marriage is annulled.
What are the Grounds for Annulment?
South Carolina Law provides for several specific circumstances under which the family law court will grant an annulment. Most marriages will not meet these specialized criteria, but if you believe your marriage may qualify under one of the following grounds, you should consult a South Carolina divorce lawyer about this option.
If either you or your spouse were younger than the age allowed for marriage in South Carolina and you did not obtain the required parental permissions.
A marriage that has occurred under fraudulent terms can be annulled in South Carolina. An example of fraud would be if a woman were pregnant with another man’s child at the time of the marriage, but told her future husband that the child was his.
It is not legal to be married to more than one person at time, so if you or your spouse were legally married to someone else when you married each other, the marriage is void.
If you or your spouse were suffering from any type of legally recognized form of mental incapacitation at the time of the union the marriage contract would be void for lack of consent.
Failure to Consummate Marriage:
If you or your spouse is unable to consummate the marriage, you may qualify for an annulment. However, if you have actually lived together then the court may consider that you have ratified the marriage. See the case law below.
If the marriage was entered into under the threat of force, either spouse could apply for an annulment in South Carolina.
You will need to be able to prove these claims in court. Proof will need to be more than just the word of even both spouses. The family law court will require independent proof before granting an annulment. In most cases it is actually easier to proceed with a no fault divorce. A South Carolina family law attorney can explain your options and assist you in deciding between your legal options for ending the marriage.
South Carolina Case Law on Annulment
Because the property agreement was adopted by the family court in response to Wife's petition for annulment and decree of separate support and maintenance, we find Husband's argument to be without merit. It has long been established that S.C.Code Ann. § 20-7-420(6) (1976 & Supp.2003) grants the family court exclusive jurisdiction over annulment proceedings. White v. White, 283 S.C. 348, 349, 323 S.E.2d 521, 522 (1984). Furthermore, this jurisdiction extends, not just to the issue of the actual annulment, but to "all matters in an annulment action, as in a divorce proceeding," including the equitable
distribution of property. Id., 283 S.C. at 350, 323 S.E.2d at 522; see also S.C.Code Ann. § 20-7-420(30) (1976 & Supp.2003) (granting the family court exclusive jurisdiction "to hear and determine any questions of support, custody, separation, or any other matter over which the court has jurisdiction.").
There is no legal distinction between a marriage which is annulled and one terminated by reason of bigamy, as they are both void ab initio, or "from the inception." Splawn v. Splawn, 311 S.C. 423, 425, 429 S.E.2d 805, 806 (1993). In fact, the South Carolina Supreme Court has specifically held the family court has subject matter jurisdiction to equitably distribute property in a bigamous marriage. Id., 311 S.C. at 424, 429 S.E.2d at 806.
Under South Carolina Code of Laws § 20-1-530, a party seeking an annulment on grounds other than legal incompetence to contract marriage must show (1) lack of legal consent or that the marriage was not a valid contract and (2) no cohabitation between the parties.
First, Husband claims the marriage contract was invalid because he was induced by fraud to marry Wife. He alleges Wife did not reveal before marriage the psychological problems which resulted in her sexual incapacity. 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.
We need not decide whether concealment of a known sexual dysfunction is fraud sufficient to justify an annulment. We conclude the record in this case does not support a factual finding Wife concealed an incapacity for sexual relations.
The parties shared a bed on many occasions during their five-year courtship but agreed they would not engage in premarital sex. Wife testified she told Husband about her emotional problems before their marriage. Further, she testified Husband knew about her problem with sexual intercourse from an "engaged encounter" they attended before they married. Wife was never diagnosed or treated for psychological problems until 1987, two years after the parties married. Husband 475*475 introduced no evidence Wife knew the extent of her sexual problems before the marriage. He admits, in fact, she did not know until she began treatment with the psychiatrist in 1987 after the parties had tried and failed to engage in sexual intercourse.
The court denied the annulment since the parties had lived together and the wife did not know of her problem until after the marriage.
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