Oh no! I got married! How to Erase an Invalid Marriage in Virginia

March 9
Written by Kenneth W. Jacobson, Esquire

If you are in a marriage that is quickly devolving, you might wonder whether divorce is your only option. For most people, the answer will be yes; however, this presupposes you have a valid marriage in the first place. Some marriages are void ad ibnitio – void from the outset, and some other marriages are voidable, meaning that you are able to seek a legal declaration that the marriage was either never valid in the first place, or is not valid now. In other words, in some situations you can erase the marriage.

Most people do have a valid marriage and, therefore, do not have circumstances wherein a Virginia Court would declare that their marriage is void or voidable. Nevertheless, these cases do often arise. This article will explain some of the circumstances under which a Virginia Court might enter a Decree of Annulment instead of a Decree of Divorce.

The Code of Virginia § 20-89.1 states, in part, that when a marriage is alleged to be void or voidable either party may institute a suit for annulling the same, and upon proof of the nullity of the marriage it shall be decreed void by a decree of annulment. Virginia Code § 20-89.1 limits the reasons for annulment to cases where there is:

  1. Fraud
  2. Duress
  3. Bigamy: A marriage entered into prior to the dissolution of an earlier marriage of one of the parties. (§ 20-38.)
  4. Incest: Marriage between an ancestor and descendant, or between siblings (half or whole blood), or between uncle or aunt and a nephew or niece (half or whole blood).
  5. “Marriage” without a license and/or solemnization. (§ 20-38.)
  6. A party who has natural or incurable impotency of body existing at the time of entering into the marriage contract.
  7. A spouse fails to disclose conviction of a prior felony.
  8. A spouse fails to disclose, at the time of marriage, that they are pregnant with the child of a third party.
  9. A spouse fails to disclose that they have conceived a child, born to another person, within 10 months after the date of solemnization of the marriage.
  10. A spouse fails to disclose, prior to the marriage, a history of working as a prostitute.
  11. A party, or parties, who lack capacity to consent to the marriage, because of mental incapacity or infirmity.
  12. (For marriages after July 1, 2016) Either or both parties were under the age of 18 (provided the minor was not emancipated by court order).

There are very few cases where annulments have been granted on the basis of fraud. One such case where an annulment was granted and upheld on the basis of fraud was a 1941 decision of the Virginia Supreme Court in the matter of Pretlow v. Pretlow, 177 Va. 524, 14 S.E.2d 381 (1941). The Court upheld an annulment granted to the husband, aged 67, where it was shown that his wife, age 44, refused to consummate the marriage and had entered the marriage with no intention of ever consummating the marriage. The Court invalidated the marriage, determining that Mrs. Pretlow committed fraud under these circumstances. A marriage induced through fraud could result in a voidable marriage.

Duress is an interesting concept for annulment, but generally, you do not expect to see these circumstances often outside of works of fiction. A “shotgun wedding” is a perfect example of a marriage entered into under duress. Duress requires a person be acting under threats, violence, or constraint. If someone were kidnapped and forced to marry their captor, duress occurred, and annulment is an option. If a family member were kidnapped or threatened, and a person was forced to marry the kidnapper, or to marry to avoid violence, then duress would apply under these circumstances as well. A marriage entered into under duress is a voidable marriage. You do not have to seek an annulment just because you entered the marriage under duress, but you can certainly seek to have the marriage invalidated if these circumstances exist. Bigamy, or cases where a prior marriage of one of the parties has not legally ended before a new marriage begins, are one of the more common bases for annulment. There are two circumstances where you tend to see this happen. The first is due to cultural differences, as in cases where a person is a citizen of a country that permits multiple marriages, and they come to Virginia, take on an additional spouse, without first disclosing to their new spouse that they are already married. This is rare, but it does happen. More often a bigamous marriage results when a person wrongly believes their prior marriage has already ended in divorce. A party may, in good faith, marry a new spouse only to later discover that their first marriage did not actually end until after their new marriage began. Many divorce attorneys caution clients NOT to get remarried immediately following their divorce, waiting at least 30 days after entry of a Final Decree of Divorce, so that unintended bigamy can be avoided. Bigamous marriages result in an absolutely void marriage – erased as though it did not occur.

If you were “married,” but you never obtained a marriage license, then you are not actually legally married. In Virginia, you have to have a marriage license prior to your ceremony/solemnization. If you obtained the marriage license, but then then failed to have a “solemnization” (ceremony of some kind), you also might not have a valid marriage. If your officiant fails to send in your license, or if the license is not properly witnessed, you may also have an invalid marriage. These types of cases are very fact specific, and you would need to discuss this situation with an attorney to determine whether you have a valid marriage.

Cases of incestuous marriage are self-explanatory. The law does not permit marriages between certain family members. Oddly, however, Virginia is one of the few states which permits first-cousins to legally marry. Prohibited marriages, however, result in a void marriage.

A case where there is natural incurable impotency of body existing at the time of entering into the marriage contract is a marriage which cannot be consummated through no fault of one of the parties. This does not mean that the parties cannot stay married, it simply provides a means of ending a marriage if this situation exists at the time of the marriage, should one of the parties desire an annulment, provided they cease cohabitation and bring the action within the time proscribed by law.

In cases where a person is pregnant with the child of a third party, and their spouse marries under the mistaken belief that the child is theirs, or without knowing that the person is then pregnant, causing them to believe that the child is of the marriage, then annulment is an option to the innocent party IF the pregnant party knew and failed to disclose that the child was conceived by a third party. This type of marriage is voidable, so annulment is an option.

Similarly, in cases where a person conceives a child, born to another, within 10 months of marriage, and failed to disclose this fact prior to the marriage, then the marriage is voidable for the innocent party.

If a person marries a former prostitute or a convicted felon, and the history was not disclosed prior the marriage, then the innocent party may seek an annulment.

Finally, there are cases where a person lacks legal capacity to marry. For instance, a person in a vegetative coma has no legal capacity to consent to marriage. A person having severe mental disability may lack the capacity to consent to marriage. Children have no legal capacity to consent to marriage. Hence, a person under the age of 18, who has not been legally emancipated, may seek annulment on the grounds of having lacked legal capacity to marry.

Annulment generally exists for the benefit of the innocent party, meaning that annulment is at their option; however, in cases where the marriage is void, instead of voidable, such as cases of incest and bigamy, either party may seek a declaration of Annulment to verify the invalidity of the marriage.

If you have grounds for annulment, you may need to act quickly to seek annulment, or else you may lose the option. In nearly every case, except bigamy and incest, failure to bring a cause within 2 years of marriage will eliminate the ability to invalidate the marriage through annulment. Similarly, continuing to cohabit with the person after learning of grounds to invalidate a voidable marriage, may also prevent a person from seeking annulment.

Wooten Law Group has filed and argued several annulment petitions – some involving unusual circumstances. If you would like to learn more about whether annulment is right for you, call to schedule a consultation with one of our Attorneys.