Chapter Three Annulment

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Three ANNULMENT

A. In General

Chapter Two concerns actions to establish the validity of marriages. Annulments are actions to establish the invalidity of marriages. Of course, the question of whether a marriage is valid or invalid requires an examination of virtually identical factors; thus, readers should refer to Chapter Two for the bulk of the discussion on this topic.

An annulment declares that a marriage never occurred because of some defect. Defective marriages may be either void or voidable. In a void marriage, the circumstances are such that the marriage could never have come into being. A voidable marriage is recognized under the law as a valid marriage until an action is brought to prove it invalid.

A void marriage technically needs no judicial action to declare that it is void. The following examples illustrate the essential differences: suppose A and B are parties to a voidable marriage and one of them dies. The remaining spouse is legally entitled to all legal rights and obligations stemming from the marriage relationship, if there was no adjudication of voidness during the joint lifetimes of the parties. A void marriage, by contrast, creates none of the rights and obligations which stem from the marriage relationship and no adjudication is required before the void marriage has this effect. A void marriage may be declared void by judicial action at the request of any interested individual at any time.

B. Jurisdiction

As discussed more fully in the chapter on jurisdiction, if the family court lacks subject matter jurisdiction, it cannot obtain it. A challenge to subject matter jurisdiction can be raised at any time during the proceeding, even at the appellate level. Any action taken by a court without subject matter jurisdiction is void. This includes an objection that statutorily imposed time limits were not observed.

Annulment of marriages, like divorce, has not always been possible in South Carolina. The mid-nineteenth century South Carolina cases held that jurisdiction to annul marriages lay only with the ecclesiastical courts of England and, because there was no constitutional or statutory grant of jurisdiction to annul marriages, South Carolina courts were without jurisdiction to do so. The constitutional limitation was removed in 1868 when Article IV, § 15 of the South Carolina Constitution of 1868 was amended to provide that the court of common pleas should have jurisdiction in all civil cases. The statutory limitation was removed in 1873 by the Revised Statutes of that year which declared certain marriages to be void.

South Carolina's latest Constitution, that of 1895, retains the wording of Article IV, § 15 of the 1868 Constitution in Article V, § 7. In 1902, several statutes were enacted concerning the validity of marriages (S.C. Civil Code of 1902, §§ 2658, 2661 and 2664). In 1911, the Supreme Court put to rest any doubts regarding the authority of the court of common pleas to assume jurisdiction over the annulment of marriages. In Davis v. Whitlock, 90 S.C. 233, 73 S.E. 171 (1911), the Supreme Court unequivocally stated that the court of common pleas had jurisdiction over suits to annul marriages. Noting that the legislature had passed laws declaring all bigamous marriages void (as well as marriages between a white person and an Indian or black person), the Supreme Court stated:

There ought to be no doubt of the proposition that, when the legislative department of the government enacts a law, it is not necessary to provide that the courts shall have jurisdiction to determine any substantial controversy between the individuals that may arise under the law. Such jurisdiction is necessarily implied.

Davis at 238-239, 73 S.E. at 173.

South Carolina's family courts now have exclusive jurisdiction over actions for annulment of marriages by virtue of S.C. Code Ann. § 63-3-530(A)(6) (2009).

Once the family court has jurisdiction of the annulment suit it also has jurisdiction to resolve all other issues presented. Splawn v. Splawn, 311 S.C. 423, 429 S.E.2d 805 (1993) (affirming the trial judge's decision to equitably apportion marital property after declaring the marriage void because the husband had entered into the marriage with the mistaken belief that he was divorced from his first wife). This has been the rule in South Carolina for a long time. See White v. White, 283 S.C. 348, 323 S.E.2d 521 (1984), Campbell v. Moore, 189 S.C. 497, 1 S.E.2d 784 (1937) (child custody, maintenance, and attorney's fees); Young v. Naylor, 10 S.C. Eq. (1 Hill Eq.) 383 (1833) (division of property).

The Court of Appeals reaffirmed that the family court has subject matter jurisdiction to equitably distribute property in a bigamous marriage, including jurisdiction to adopt an agreement of the parties, even though a bigamous marriage is void ab initio in Rodman v. Rodman, 361 S.C. 291, 604 S.E.2d 399 (Ct. App. 2004). The husband remarried before his first divorce was finalized, thus creating a bigamous marriage. The second wife filed an action for separate support and maintenance, and the parties entered into an agreement about the division of property and alimony that was adopted by the family court in its separate support and maintenance order. The husband subsequently filed a motion to vacate the order on the basis that the family court lacked subject matter jurisdiction because the marriage was void ab initio, and any agreement regarding alimony was null and void. The Court of Appeals held that the family court has exclusive jurisdiction over annulment proceedings, and "this jurisdiction extends, not just to the issue of the actual annulment, but to 'all matters in an annulment action, as in a divorce proceeding, including equitable distribution of property.'" Rodman at 296, 604 S.E.2d at 401 (citing White v. White, 283 S.C. 348, 350, 323 S.E.2d 521, 522 (1984)).

Two special rules regarding service of process in annulment proceedings should be noted. S.C. Code Ann. § 20-1-550 (1976) provides:

When a marriage has been contracted or solemnized in this State and an action is brought under Section 20-1-80 [bigamous marriage], 20-1-510 [jurisdiction in the court of common pleas], and 20-1-530 [lack of consummation] seeking to annul it, the plaintiff shall serve his complaint on the defendant by publication as provided in Sections 15-9-710 and 15-9-740. The original summons must be filed in the office of the clerk of court of the county in which the action is pending.
Service by publication as provided in Sections 15-9-710 and 15-9-740 also is available to a plaintiff in an action for annulment whose marriage was contracted or solemnized outside of this State when the plaintiff was a resident of this State at the time of the marriage or has been a resident of this State for at least one year prior to the commencement of the action.

S.C. Code Ann. § 20-1-560 (1976) deals with service of annulment pleadings on persons in military service. It provides:

No action shall be brought under the provisions of Section 20-1-550 against a man or woman in the military or naval service who is beyond the seas, nor until after such man or woman in the military or naval service has returned from beyond the seas for a period of three months, unless such defendant consents to such proceedings.

C. Venue

It is not altogether clear what constitutes the proper venue for annulment actions. Unlike actions for divorce and separate support and maintenance, there is no specific statute establishing venue for annulment actions. Therefore, venue is determined by reference to the general statutes governing civil actions. These are found in S.C. Code Ann. §§ 15-7-10 et seq. (1976). There have been no cases directly on point to provide guidance.

The proper location to initiate an annulment action appears to be the county in which the defendant resides at the time of the commencement of the action. S.C. Code Ann. § 15-7-30 (1976). This may cause some inequity, for the best place to bring the case might be either at the place where the parties tried to become married or where they last resided together. Both of these locations may, in fact, be preferable to the defendant's present home due to the existence of witnesses or property involved in the dispute. Perhaps, the legislature will modify S.C. Code Ann. § 20-3-60 (Supp.) to clarify the venue for annulment proceedings, by applying the venue rules in Section 20-3-60 to all forms of marital litigation, not just divorce.

Choosing an improper venue to initiate litigation is not necessarily detrimental to the merits of the plaintiff's case. If the venue is wrong, the proper remedy is to transfer the case, not to dismiss it. SCRCP Rule 82(b). SCRCP Rule 12(b) provides that the defense of "(3) improper venue" may be raised either in responsive pleadings or by motion. If it is raised by motion, it "shall be made before pleading, if a further pleading is permitted."

At least one of the parties to an annulment action must be a domiciliary of this state before personal jurisdiction attaches. In Foster v. Nordman, 244 S.C. 485, 137 S.E.2d 600 (1964), the parties were married in South Carolina but were North Carolina domiciliaries when the annulment suit was brought. The Supreme Court refused to grant the annulment even though the marriage was performed in South Carolina, stating:

There is no jurisdiction of an annulment suit merely because the marriage was performed within the state. Jurisdiction lies in the courts of the state where the parties are residing, or where one of them resides at the time of suit, irrespective of the place where the marriage may have been contracted or solemnized.

However, South Carolina accepts the common law principles that the courts of the domicile of the parties have the right to determine the marital status of its citizens under its laws, and they have jurisdiction to annul a marriage celebrated elsewhere. See Foster; and Everly v. Baumil, 209 S.C. 287, 290, 39...