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South Carolina Annulments
Annulments in South Carolina

A divorce ends a valid marriage; an annulment means the marriage was never valid. South Carolinas law on annulment is in South Carolina Code, Title 20, Chapter 1.

Grounds

In South Carolina a marriage may be annulled when one party can prove:

  • duress, which means that one spouse coerced the other to get married;
  • fraud, which means that one spouse lied about something essential to the marriage, e.g., hiding insanity or impotence;
  • bigamy, which means that one spouse has a living husband or wife at the time of marriage;
  • incest, which means that the spouses are more closely related than first cousins;
  • mental incompetence, which means that one spouse is mentally disabled to the point he or she cannot consent to the marriage;
  • underage, which means that one or both spouses are under 16;
  • no cohabitation, which means the spouses never lived together.

Additionally, state law states that there is effectively only one way to obtain an annulment of marriage in South Carolina. There are two conditions, both of which must be met. In order to obtain annulments of marriage in South Carolina, the marriage can never have been consummated, which means that the spouses cannot have had sexual relations following a ceremony; and they cannot have lived together for any period of time, which means that even if they spend only a honeymoon evening together, they cannot annul the marriage.

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 duress must also be immediate. South Carolina courts have refused to grant an annulment when a victim could avoid the wedding but goes through with it.
  • 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.
  • In an annulment based on fraud, the misrepresentation must be about something essential to the marriage, which includes lying about insanity, impotence, or sterility. The court also considers whether the spouses consummated the marriage by living together, having sexual relations, or sharing a bed. The longer and more serious the marriage, the less likely a court will annul the marriage.
  • Prohibited marriages sometimes take the place of annulments. Marriages that do not have to be annulled in South Carolina are known as prohibited marriages. Prohibited marriages include marriages to the mentally ill, cases of incest and cases of bigamy.

As of June 2010, South Carolina had no statute of limitations on filing for an annulment. A party can file for annulment regardless of how long the couple has been married.

In order to be considered for an annulment, a party must not have consummated the marriage. There are no other qualifications permitting a marriage to be declared invalid.

When an annulment is granted, no valid marriage ever existed; both spouses 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.

An annulment action permits a spouse who took the last name of the other spouse to continue using the partner's 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 legitimate as long as at least one parent entered into the marriage in good faith and didnt 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.

Procedure

In South Carolina, the petitioner files a Complaint for Annulment in the circuit family court for the county where his or her partner lives. The partner is called the defendant. The plaintiff must have lived in South Carolina for at least a year and one or both spouses must reside in the state. If a marriage occurred in the state but neither spouse currently resides there, the action cannot be filed.

The complaint for annulment gives the particulars of the marriage - the date, the county and state, and the county of residence. The complaint also lists the names and birthdates of any children born during the marriage. It states the grounds for annulment and any issues in connection with custody, child support, visitation, alimony or property division.

Filing the complaint in the circuit family court, the plaintiff must arrange service of the complaint on the defendant. Its also possible to serve a missing spouse or one who lives out of state.

After the defendant receives the annulment papers, there will be a 30-day waiting period before there can be a hearing regarding the annulment of marriage.

The circuit family court holds a hearing where the plaintiff proves the grounds for the annulment. If the judge believes the argument, the court grants the annulment.

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