Believe it or not, marriages are not annulled all that often. Despite the fact that everyone has heard of annulment and thinks that it (like common law marriage) is a real possibility, in most cases, at least in Virginia, marriage annulment is just not something that happens.
It’s possible, of course—but definitely not very likely. Why? Well, marriage and divorce exist to protect the people involved. Once you’re married, you have all sorts of rights that unmarried people don’t have. From the moment you marry, you acquire an interest in all the property that is earned, purchased, or acquired by either of you during your marriage. You also have an interest in earnings or retirement from the period of your marriage. You can ask for spousal support. There are lots of rights associated with marriage that, if you weren’t married, you wouldn’t have.
When you ask for an annulment, you’re asking for your marriage to be legally erased. If you weren’t married, you can’t ask for the benefits associated with the dissolution of a marriage. In this type of situation, you definitely can’t have your cake and eat it, too. There’s no such thing as an annulment where spousal support or equitable distribution was awarded—so, if there are assets acquired during your marriage, you may be biting your nose to spite your face, so to speak, if you ask for an annulment.
Still, I’m interested. How do I know if I qualify for an annulment?
I get it. There’s still something attractive about annulment. Erasing your mistake, and making it appear as though it never happened at all, is tempting. (Don’t you wish you could do that with all of your mistakes?)
A lot of people are under the impression that if, within a very short time frame, you realize you made a mistake, you can just have your marriage annulled. Alternatively, I’ve also heard that, if your husband lied to you or made some kind of material misrepresentation, that you might qualify for an annulment.
In most cases, like I already said, you really can’t get an annulment. And that’s really for your protection. Still, there are certain, narrow, limited circumstances that do qualify you for an annulment. So, what qualifies?
There are only four types of cases where you’d qualify for an annulment in Virginia.
Case #1: Annulment where there is a defect in the marriage itself.
Marriages are “defective” if there was never a valid marriage to begin with. This can happen in a couple of different ways. If, for example, there was something wrong at the time the ceremony was conducted (like that your celebrant wasn’t recognized to perform marriage rites in the Commonwealth of Virginia, or if one of you was already legally married), there might be a defect in the marriage. We’ll discuss this more in a minute.
Let’s think about this differently. If there was a defect in your marriage, you have to get an annulment. (Or, on the other hand, correct the defect and remarry.) You don’t qualify to get a divorce, because you never had a valid marriage at all. If you want to end your relationship, the only way to do so is by getting an annulment.
What qualifies as a “defect” in a marriage?
There are a couple of different situations where a defect would be found in the marriage, with the most common example of this being one where the marriage commissioner, officiant, celebrant, or clerical officer who performed your ceremony wasn’t authorized to perform marriage ceremonies in the Commonwealth of Virginia. Since you can’t get legally married without having someone who is legally authorized to perform a marriage ceremony presiding over your wedding, you can’t be legally married. An officiant isn’t just some random guy from off the street; there are licensing requirements imposed by the state, and these always have to be followed.
Another way this can happen is if one party was already legally married. Usually, this happens accidentally; they thought a divorce decree was entered, but it turns out that they were mistaken. (And, trust me, it happens!) In fact, of all the ways that I’ve seen people get annulments, this is almost always the problem. You’d probably be surprised at how often this happens!
A third way this could happen is if someone got married who wasn’t old enough, at the time of the marriage, to legally consent. Virginia law prohibits people to get married before a certain age. If you were too young to legally consent to the marriage when you got married, you wouldn’t legally be married.
Likewise, incestuous marriages are also invalid, so there is a defect in the marriage. It doesn’t matter who performed it, or whether you consented, because, legally, you can’t be married anyway.
Case #2: If your spouse withheld a “critical” piece of information from you, you may be able to get an annulment.
If you feel like you’ve been coerced or tricked into a marriage that wasn’t what it was advertised to be, you’re probably feeling pretty terrible. This is a ground for annulment I hear a lot, too; you might be surprised, too, at the types of things people lie about before they get married. If your husband didn’t tell you the truth about something, it may be possible to get an annulment of your marriage.
Only a couple of things qualify as critical enough to warrant an annulment. It’s possible, but the circumstances are very limited. When you share a life with someone, or start considering whether you’d like to share a life with someone, there are lots of things that you probably believe you have a right to know before you say “I do,” but, legally at least, only a very, very narrow category of information qualifies as sufficiently critical to qualify you for an annulment, rather than a divorce.
What kind of information qualifies as critical?
Under Virginia law, there are only 4 things that, if withheld, will allow you to get an annulment.
1. If your husband as convicted of a felony prior to your marriage, and he didn’t tell you about it before you got married.
2. If your husband was unable to have children, and didn’t tell you about it before you got married.
3. If your husband fathered a child outside of your relationship within ten months of your marriage, and didn’t tell you about it.
4. If your husband previously worked as a prostitute, and he didn’t tell you about it before you got married.
That’s it. Those are the only 4 situations where the information is considered critical enough to warrant an annulment.
If your husband has lied to you about other things, like his finances or his family background, it’s not critical. (Though I’m sure it may seem critical to you, and it is definitely pretty terrible.) Though you may still wish to divorce a person who you married under false pretenses, you can’t get an annulment unless the information he withheld from you falls within those 4 narrow circumstances.
Case #3: Marriages where fraud is an issue.
You’re probably wondering now, if you believe you were defrauded into a marriage, what the specific circumstances are that qualify you for an annulment. Unfortunately, unlike with withheld information, there aren’t specific things that the law sets forth that are fraudulent enough to qualify you to receive an annulment. That doesn’t mean, though, that it’s easy to prove that there was fraud that qualifies you for annulment. Though it’s an open-ended area of the law, you still have to meet all the prongs in a four part test.
1. Your spouse lied or misrepresented something to you.
2. The lie or misrepresentation was intentional.
3. You relied on your husband’s lie or misrepresentation.
4. You were hurt because you relied on your husband’s lie or misrepresentation.
To pursue an annulment using fraud as your grounds, you’ll have to go to court to litigate—basically, to prove, to the satisfaction of a judge, that what happened to you actually amounts to fraud. It’s not easy, for sure, but it’s possible.
If you’re wondering whether you qualify for an annulment based on your unique circumstances, or if you’re just ready to move forward with your divorce, give our office a call at (757) 425-5200.