When Is A Marriage Not A Marriage? Annulment Grounds In Virginia

Posted on July 30th, 2009, by James Livesay in Family Law. Comments Off on When Is A Marriage Not A Marriage? Annulment Grounds In Virginia

Virginia CodeAn annulment is a judicial declaration that a marriage was a nullity from the start, leaving the parties free to remarry as they might after a divorce. A marriage subject to annulment may be classified either as a “void” marriage or a “voidable” marriage.

Void Marriages. A “void” marriage is an absolute nullity in the eyes of the law. It requires neither an annulment proceeding nor a judicial declaration of annulment in order to be void, although parties to a void marriage may still choose to bring an annulment action in order to obtain a judicial declaration that the marriage was void ab initio.

Void marriages in Virginia include:

  • bigamous and polygamous marriages,
  • incestuous marriages, and
  • underage marriages.

Voidable Marriages. In contrast to a void marriage, a “voidable” marriage is presumed to be a legally valid marriage until it is annulled by a judicial determination. In order to challenge the validity of a voidable marriage, an annulment action must be brought in court.

Grounds for annulment of voidable marriages include:

  • fraud or duress,
  • mental incompetence,
  • the physical impotence of a party,
  • marriages where the wife did not know that her husband had fathered a child born to another woman within 10 months after the marriage,
  • marriages where the husband did not know at the time of the marriage that his wife was pregnant with the child of another man, and
  • marriages where either party did not know at the time of the marriage that the other party had been convicted of a felony or had been a prostitute.

Defenses to Annulment of Voidable Marriages. Virginia Code section 20-89.1(c) sets forth the defenses to an annulment based on a claim that the marriage is voidable. When the complaining party continues to cohabit with the other party after gaining knowledge of the facts giving rise to a voidable marriage, the defense of ratification will apply. In addition, if the parties were married for two years or more before the commencement of the annulment action, no annulment will be decreed. Other legal defenses may also apply, such as defects in jurisdiction, failure to prove the grounds alleged, res judicata and estoppel.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s five offices.

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