What circumstances permit an annulment versus a divorce?

Family law lawyers get requests for annulments in generally two cases: a very short term marriage (just a few months) or marriage to a foreign national for a short period of time.  In both of these instances, South Carolina law provides very little flexibility.  

The reason someone may want an annulment is because it voids the marriage.  If there is no valid marriage, there can be no marital property, no support issues, no shared banking accounts, no shared debts, etc….

A woman came to me a few years ago. She was twice divorced, lonely, and had engaged in a pen pal type relationship with an inmate serving 25 years for molesting children.  She thought it would be a good idea to marry him while he was still in prison, which she did about a year prior to my meeting her.  I met this woman in the context of a custody case with her former husband who, at the time, was unaware of my client’s  marriage to a sex offender.  My client needed this marriage to go away!

S.C. Code Ann. § 20-1-510 (1985) provides:

If any [marriage] 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.

The key here is the phrase “lack of cohabitation”.  Lack of cohabitation was added in 1985 when the common law rule on annulment was codified.  Therefore, to prove an annulment there must be an issue that causes the marriage contract to be void AND there must be lack of cohabitation. 

In my case it was easy. Husband was an inmate and had never physically touched my client, much less cohabitated with her.  She alleged he had lied to her about the reason he was locked up which formed the basis of her claim to abrogate the marriage contract.  Husband was transported by SCDC to the hearing and did not object- apparently he was just happy to take a road trip- and the annulment was granted to my client.

More complicated are the women or men who marry foreign nationals who turn out to be couch potatoes.  As long as there is cohabitation, it does not matter if the foreign national refuses to work, drinks in excess, commits adultery; the only remedy is a divorce as the parties cohabited as husband and wife.

So the moral of the story is a person wanting an annulment can only get one if there is no cohabitation, regardless of the bad behavior of their spouse.  

I hope you find this helpful,

Guy