What is required for an annulment based on immigration fraud?

We have recently had several requests by clients seeking an annulment of their marriage based on immigration fraud. The South Carolina Statute regulating the validity of a marriage is clear and obtaining an annulment of a marriage is difficult.

The South Carolina Code of Laws states as follows:

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. S.C. Code Ann. § 20-1-530

Cohabitation means that two people lived under the same roof as husband and wife. Barksdale v. United States. South Carolina has never required sexual intercourse as a condition of a marriage contract, only cohabitation. Once lack of cohabitation has been established, then the parties must show either lack of consent (i.e. incapacity due to age, mental illness, etc) or some other cause, such as fraud.

In other words, a person requesting an annulment of their marriage must first show that there was no cohabitation. Once this has been established, they must next show either lack of consent or some other fact showing that a contract to marry was not made.

Two of our clients have requested an annulment based on immigration fraud. They claim that they were fraudulently induced to enter a marriage contract solely because their spouse wanted to obtain permanent legal status in the U.S.  They each married their spouse, who was visiting the U.S. on a valid passport, then made an application for legal status with the United States Immigration Department. Almost immediately after the application for legal status, certain actions taken by each spouse caused our clients to realized they had made a huge mistake.

Both couples cohabitated after the marriage, one very briefly. As a result the first requirement of the statute has not been met and an annulment can not be obtained regardless of evidence of immigration fraud.

Why is an annulment important? A marriage that is annulled is a void marriage. This means that in the eyes of South Carolina law, the two people were never married. If two people are never married, then there is no marital property to divide and no obligation to pay alimony or spousal support. For anyone who practices domestic relations law in South Carolina, these are very important issues.

While there seems to be little hope for our clients based upon a straightforward reading of the law, things may work out a little differently in practice. One client’s spouse has already been deported on an Interpol warrant for murder! We have placed him in default for failing to answer the allegations in our pleadings and will now be proceeding to a final hearing unopposed. Wish us luck!

Soon after we served the spouse of our other client with the legal papers requesting an annulment, he realized that he actually did marry our client for “love and affection” and the newlyweds are now in marriage counseling and have high hopes for an everlasting commitment! Wish them luck!!

A good practice that we always follow in any request for an annulment is to request “in the alternative” a legal separation. This means that if we fail to convince a judge to grant us an annulment, we will at least be able to obtain a separation and proceed through the normal court process and eventually end the marriage. Otherwise we risk having the annulment dismissed with no other legal recourse to end the marriage. While a separation and divorce may not seem ideal in certain cases in light of clear fraud in the inducement of the marriage, at least it will bring an end to the legal status of the parties as “spouses”.

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