South Carolina law allows a marriage to be terminated by annulment rather than divorce under certain circumstances. Read this article if you’d like to know exactly how an annulment works, and whether your marriage may be eligible for annulment.
If you have additional questions after reading this article, contact a South Carolina family law attorney. You should also check with the family court of your county to see if they have additional requirements besides what is written below.
Overview of an Annulment
There’s an important difference between a divorce and an annulment: a divorce ends a valid marriage; an annulment means the marriage was never valid. If there is a reason your marriage was never valid, you may be able to have your marriage annulled.
Grounds For an Annulment
South Carolina requires a legal ground for your marriage to be annulled. To have your marriage annulled you will need to prove one of the following grounds:
- Duress – one spouse coerced the other to get married
- Fraud – one spouse lied about something essential to the marriage (for example, hiding insanity or impotence)
- Bigamy – one spouse has a living husband or wife at the time of marriage
- Incest – the spouses are more closely related than first cousins
- Mental incompetence – one spouse is mentally disabled to the point they can’t consent to the marriage
- Underage – one or both spouses are under 16
- No cohabitation – the spouses never lived together
Some grounds for annulment have additional requirements:
For a marriage to be annulled for duress, the threats or violence must be enough that a person is afraid of bodily harm. The threats or violence must also be immediate; South Carolina courts have refused to grant an annulment when a threatened person has a chance to escape the wedding and that person goes through with the wedding ceremony anyway.
A bigamous marriage is normally invalid. However, a person who has a living spouse can still have a valid marriage if the former spouse has been missing for five or more years without any signs they are still alive.
For a marriage to be annulled for fraud, the fraud must be about something essential to the marriage. Fraud that makes a marriage eligible for annulment includes fraud about one’s insanity, impotence, or sterility. When a spouse wants an annulment for fraud, the court also considers whether the spouses consummated the marriage by living together, having sexual relations (intercourse or other sexual activities), or sharing a bed. The longer or more serious the relationship is, the less likely a court will annul the marriage.
How Do I Get an Annulment?
In South Carolina, you should file a “Complaint for Annulment” in the circuit family court for the county where your spouse lives. The spouse filing for annulment is listed in the complaint as the “plaintiff,” and the other spouse is the “defendant.” The plaintiff needs to have lived in South Carolina for at least a year. Check with the clerk of the circuit family court for your county to see if they have a sample complaint for annulment that you can use. A link to contact information for all South Carolina circuit family courts is below.
Your complaint for annulment should list the date of your marriage and the city, county and state where you were married. You will need to give the county where you live and where your spouse lives. The complaint should also list the names and birthdates of any children born during the marriage. State the legal ground that makes your marriage eligible to be annulled. If you want the court to decide custody, child support, visitation, alimony or property division, you should state that in your complaint as well.
After you file your complaint with your circuit family court, you’ll have to serve a copy of the complaint on your spouse. The clerk at your circuit family court can tell you how to serve your spouse. It’s possible to serve your spouse even if you can’t find them or they live out of state.
Your circuit family court will hold a hearing where you’ll have to prove the legal grounds for your annulment. Bring any evidence that supports your legal grounds with you to the hearing. If the judge believes you’ve proven your case, the judge will grant your annulment.
Effect of an Annulment
When an annulment is granted, it means no valid marriage ever existed. Both spouses can say that they were never legally married to each other.
In South Carolina, when a marriage is annulled, the judge can still decide issues like custody, visitation, child support, alimony, and property division.
If one spouse took the last name of the other spouse, that person can choose to continue using that last name or change back to their original last name.
A marriage can still be annulled if children were born during the marriage. In South Carolina, children of an annulled marriage are considered legitimate as long at least one parent entered into the marriage in “good faith” (didn’t know the marriage should be invalid). A legitimate child has the right to be financially supported by both parents, and can also inherit from either parent.