Getting an annulment means the marriage never existed, whether it was void for being a prohibited marriage or was just never consummated. This is distinct from a divorce process, where the marriage existed and the property must be divided according to the state laws for divorce. Prohibited marriages are marriages that are void or invalid because the parties can’t get married under South Carolina law.
The following table outlines the South Carolina annulment and prohibited marriage laws
||South Carolina Code Title 20: Domestic Relations, Chapter 1: Marriage
|Grounds for Annulment
||If the marriage was invalid, then a person has a reason or grounds for an annulment. The marriage could be invalid because:
- It was never consummated (the two never lived together)
- One of the spouses was already married (bigamy)
- One of the parties was under 16 and wasn’t legally able to get married
|Time Limits for Obtaining Annulment
||As long as the requirements of an annulment are met, there’s no statute of limitations (time limit) for filing an annulment.
|Legitimacy of Children
||Two people who enter into a bigamous marriage in good faith (i.e. didn’t realize it was bigamous and therefore void) have legitimate children. However, today the issue of being legitimate or illegitimate is no longer a legal, including inheritance, child support, or wrongful death or insurance proceeds.
||South Carolina prohibits several different types of marriages, including:
- Persons who are mentally incompetent (couldn’t enter a contract) can’t marry
- Marriages between close relatives are void, such as:
- Ancestor and descendant (father and daughter, grandmother and grandson, etc.)
- Spouse of ancestor or descendant (stepfather and child, etc.)
- Uncle and niece or aunt and nephew
- Bigamous marriages (where at least one party already has a spouse) are void unless the former spouse is absent and hasn’t been heard from for at least 5 years
- Same-sex marriages were prohibited for allegedly public policy reasons, but see below as the same-sex ban is now unconstitutional
||As of November 20, 2014, same-sex marriage is legal in South Carolina. On November 12, 2014, U.S. Federal District Court Judge Gergel struck down the same-sex marriage ban in South Carolina. The state’s request to hold off on gay marriage while the state appealed was denied. In 2015, the U.S. Supreme Court decision in Obergefell v. Hodges clearly stated that state bans on same-sex marriage violate the Fourteenth Amendment, effectively closing the book on the discussion for now.
||First cousins can marry with no restrictions in South Carolina.
|Common Law Marriage
||South Carolina still recognizes common law marriage. If two people who could legally get married have the present intent to be married and live together as if they’re married, they could be considered common law married. Proving or disproving common law marriages are very fact specific.
If you want to get an annulment, divorce, or are curious about the validity of your marriage, including common law marriage possibilities, you should consult with an experienced South Carolina family law attorney.
Note: As state laws change frequently, it’s important to confirm the accuracy of the laws you are researching by either conducting your own research or contacting an attorney.
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