Annulments in Virginia - A Brief Primer

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world.  Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with.  As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).

In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments.  In today's post, I will do a very brief primer on what Virginia law is regarding annulments.

Advantages of Annulment vs. Divorce

Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get?  Well, annulments do offer several advantages.  Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order.  Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place.  Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.

Void vs. Voidable Marriages

Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages.  In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into.  In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry.  Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry.  A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem.  A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.

So, what kinds of invalid marriages are void and what kinds are voidable?  The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:

• Bigamous marriages;
• Incestuous marriages;
• Marriages where either party is under 18 without consent of their parents;
• Marriages where either party is under 16 (with an exception for pregnancy).

As you can probably guess, prior to 2014, same sex marriages were also void, and prior to 1967, interracial marriages were also void in Virginia.

Some examples of invalid marriages that are merely voidable are:

• Marriage based on some form of fraud;
• Marriage involving at least one party that lacked capacity to consent;
• Marriage where one party was impotent at time of marriage;
• Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
• Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
• Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
• Marriage where either party had ever been a prostitute without the other's knowledge;
• Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).

Fraud

So, the most common form of annulment we see is a claim of fraud.  Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth.  Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.

If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).

Cohabitation and Two Year Marriage Rule

After all of that, however, we get to a big catch.  For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years.  Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.

This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.

Conclusion

Annulments are an ancient element of family law that is rarely available and even more rarely useful today.  Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while.  If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do).  Our initial consultations are free for up to half an hour!