South Carolina Annulment vs. Divorce

Male hand pointing to a divorce paperThe legal difference between a divorce, found at S.C.Code Ann. § 20-3-10, and an annulment, found at  S.C.Code Ann. § 20-1-550, is rather simple to understand.

  • A divorce ends the legal union of marriage and recognizes that the marriage itself was legitimate.
  • An annulment voids a marriage from its inception and does not recognize it as legitimate.

Consider the following example: two parties’ parents signed the marriage contract without full agreement from the bride and groom. This marriage would be eligible for an annulment.  Another example is if one spouse is under the age of consent allowed for marriage; this marriage could be annulled, as well.

Why The Distinction Matters

The difference between a divorce and annulment can be an important legal distinction.  If children were born during the life of the marriage, there is a legal presumption that the husband is the father to the children.  This may matter tremendously to the husband who may or may not not actually be the father to a child born during the life of marriage.  There is an exception to this rule if the grounds for the annulment is bigamy, but the other spouse does not know of the existence of the other marriage.  Another time when the difference matters is with respect to the the marital communication privilege, also known as the spousal immunity exception.  Most people are at least vaguely familiar with the Fifth Amendment constitutional privilege against self-incrimination.  A privilege is a legal term that means that the holder may refuse to testify, without fear of legal consequences.

Grounds For Annulment

The right to an annulment is specifically delineated.  If you cannot factually plead or show some basic evidence for the following grounds, you will not prevail in an annulment proceeding.  The grounds for annulment are:

  • Underage marriage;
  • Fraud;
  • Bigamy;
  • Mental incapacity;
  • Failure to consummate the marriage; and
  • Duress.

All of these issues are fact sensitive and require your attorney to know the full factual scenario.

Contact an Attorney for Help with an Annulment

Robert A. Clark is a family law attorney with experience dealing with the these delicate yet complicated family law issues.  If you or someone you know is dealing with such a situation and perhaps wants to seek an annulment, or would like to speak to a lawyer about other aspects of family law, contact us to leave a simple legal inquiry or to setup an appointment.  Reach out to us today for help.

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