There are generally two ways for a couple to end a marriage in South Carolina: divorce and annulment. Divorces can only be granted on specific grounds allowed by statute, and those grounds are one-year continuous separation, adultery, physical cruelty, habitual drunkenness or drug use, and desertion. The vast majority of marriages end in divorce as opposed to annulment. Marriages may also end if a spouse dies or becomes missing for seven years, although these are more involuntary means to the end of a marriage.
Many people seeking annulment do so because they had “cold feet” shortly after the marriage and do not want to go through the divorce process. Interestingly, annulment comes up in other contexts. For example, if a marriage is annulled, neither party can seek alimony. In rare instances, the family court can grant an annulment if the marriage was not “consummated” and if there was no valid marriage contract.
Consummated Marriage in South Carolina
First, the marriage cannot have been “consummated.” Many people believe that consummation means having sexual intercourse. However, in South Carolina, the leading case on annulment implies that consummation is made by the parties “cohabitating” or residing together. So, after the wedding ceremony, if the couple begins staying under the same roof, even for one night, it is possible that a family court judge would decide that they have cohabitated and will not grant an annulment. There is no hard rule on this issue, and even if the spouses stayed together for a short period of time, it is possible under the facts of the case that a court may find that they did not reside together.
Valid Marriage Contract in South Carolina
If a court determines that there was no consummation, the court must then determine whether a valid marriage contract was made. There are several ways to show that one or both parties did not consent to the contract. One example is where a spouse committed fraud and misled the other person as to an important fact in order to trick that person into marrying him or her. However, the South Carolina Supreme Court has declared false representations regarding one’s character, social standing, or fortune are insufficient to annul a marriage. That same court left open the question of whether the concealment of sexual dysfunction qualifies as a ground for annulment.
Void Marriage in South Carolina
A separate consideration, different from divorce and annulment, is where a marriage is void from the beginning. For example, South Carolina does not recognize a marriage if either or both of the parties are already married. So, if a woman marries a man who separated from his previous wife ten years ago but never divorced, then the marriage is void. In other words, even though the woman and her believed-to-be husband filled out the marriage license and went through a ceremony, the marriage is not recognized by our state. Even though no court action is technically necessary for this context, some people decide to file an action and go before a family court judge to formally have the marriage declared void. Otherwise, the public record may be confusing. Marriages could also be considered void if one of the spouses is found to have been legally incompetent at the time of the marriage.