Marriage & Annulment

Wedding CakeThere are two types of marriage in South Carolina: traditional (formal) marriage, and common law marriage.  Both types of marriage, and also whether a person is married at all, carry important and specific rights, obligations and privileges.

In determining whether a couple is formally married here in South Carolina, the Court is going to ask the following questions:

  • Have they applied for a marriage license?
  • If either party is 16, 17 or 18 years of age and living at home, does that party have parental consent in a sworn affidavit?
  • Was the marriage administered by an authorized person?
  • Are the parties related?  If so, how closely?
  • Are the parties mentally competent to enter into a marital relationship?
  • Is either party married to someone else?
  • Was either party coerced into the marriage through fraud or duress?
  • Has the marriage been consummated by cohabitation?

As noted above, a couple may also be involved in a “common law” marriage, and South Carolina is one of only a few states that still recognize such a relationship.  In the Palmetto State, the nature in which a common law marriage comes about is nuanced, and in determining whether or not a couple is indeed married in such a fashion, the Court analyzes the circumstances surrounding the creation and maintenance of the relationship in question.  If found to be common law married, a couple may enjoy all of the same rights and privileges of a formally married husband and wife.

In determining whether a couple is common law married here in South Carolina, the Court is going to ask the following questions:

  • Did the parties agree to be married?
  • Are the parties living together, as husband and wife, under the same roof?
  • Have the parties held themselves out as being married?
  • Are both parties older than 16 years of age?
  • Are the parties related?  If so, how closely?
  • Are the parties living in South Carolina?

Both formal and common law marriages may be dissolved in the same fashions: by divorce, and by annulment.

Annulments

An annulment is a legal procedure through which a marriage is considered null and void, as though it never happened at all.  In South Carolina, for a marriage–either formal or common law–to be annulled, one of four grounds must have been present at the time of the marriage:

  • Failure to Consummate By Cohabitation
  • Duress
  • Fraud
  • Affinity & Consanguinity (close relation)

If a married couple never lived together under the same roof or engaged in sexual relations as husband and wife, the marriage could be annulled under the grounds of Failure to Consummate by Cohabitation, and considered void for lack of consent.  Subsequent cohabitation or sexual intercourse may “ratify” the marriage, making the marriage incapable of being annulled on such a ground.

A marriage contract is also void in situations in which either party refused to give consent to the marriage, even if a ceremony took place and was presided over by an authorized official.  Think “shotgun wedding.”  To be capable of annulment on grounds of Duress, however, that lack of consent must have been continuous throughout the marital ceremony or transaction, and must have been driven by fear of bodily harm.

Annulments may also be an option if the marriage came about due to Fraud.  To sustain a finding of fraud, the misrepresentations which caused a party to be coerced into marriage must be essential to the marital relationship — in other words, the reality behind the untruths which caused a husband or wife to agree to the marriage must make performance of spousal duties impossible, or render the relationship dangerous to a party’s health or life.  For example, if one party knew that he or she was sterile and did not apprise the other party, or if one party made false representations about his or her sanity or mental condition, such fraudulent misrepresentations could be enough to serve as grounds for annulment.

Once a marriage is annulled, it is as though the marriage never legally occurred at all, and while temporary spousal support may be available while the annulment is pending, no alimony may be granted after an annulment.  Matters of custody and property division are generally handled in the same manner as during a divorce.

Failure to file for an annulment in time, however, can serve as a defense to annulment.  So, if you are considering annulment, please call our office for a free initial consultation.  We understand, and we are here to help.