Guide to Annulment in Virginia

An 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.

When a marriage is legally annulled, the law holds that the marriage never existed. Therefore none of the protections offered to divorcing spouses under the Virginia Code can be applied—meaning the court cannot divide property or order spousal support. However, child custody, visitation, and child support can still be determined by the juvenile and domestic relations district court.

Grounds for Annulment

The grounds for annulment in Virginia are extremely limited, but fall under two categories: marriages that were “void” from the beginning, and marriages that are “voidable.”

Void Marriages

A very small number of marriages may be annulled because they were void ab initio (“from the beginning”). 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.

Per Virginia Code § 20-38.1, the following are void marriages:

• bigamous or polygamous marriages; and
• incestuous marriages.

Voidable Marriages

The second category of marriages which may be annulled are the so-called “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.

Per Virginia Code § 20-89.1, 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;
• 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; and
• certain underage marriages solemnized on or after July 1, 2016.

It is also important to follow the procedure outlined by the Virginia Code when getting married: the parties have to obtain a valid marriage license and hold a solemnization ceremony performed by a officiant licensed in Virginia, in that order. See Virginia Code § 20-13. If they did not, their marriage is voidable.

Annulment vs. Divorce

Many times when it becomes obvious that a marriage is heading towards failure, the question arises whether it would be best to seek an annulment or a divorce. To answer that question, one must first understand how annulment differs from divorce, and the different remedies a court may award upon a divorce vs. upon an annulment.

As stated above, when a marriage is legally annulled, the law holds that the marriage never existed. If the parties had children, either of them can still petition the juvenile and domestic relations district court for a determination of child custody, visitation, and child support. However, the circuit court granting the annulment cannot divide their property and debts or order spousal support. This means that it is often not in one party’s interests to seek an annulment vs. a divorce.

Marriage is an institution that provides many legal benefits. Same-sex couples have been fighting for these protections for years. These benefits include the right to own a home as tenants by the entirety (a special protection that protects the property of married couples from creditors), the right to file taxes as “married filing jointly” which results in financial benefits, the right to make medical decisions for an incapacitated spouse, the right to Social Security benefits based on your spouse’s earnings—the list goes on. When a marriage is ended, these protections cease to exist.

A divorce in Virginia allows the couple to seek to maintain some of those benefits, and to obtain an equitable distribution of the assets acquired during the marriage. Marital assets include everything that was acquired by the couple during the marriage, which encompasses all assets of both parties, regardless of title. It is a common misconception that if a piece of property—be it a house, a car, a bank account—is titled in just the name of one spouse, it is not marital property. That is not true. Everything accumulated during the marriage is a marital asset and subject to division by the court. All real property, bank accounts, retirement accounts, pensions and personal property (cars, jewelry, electronics, etc.) can be valued and divided by the courts as part of an equitable distribution. Even in instances where one person was a saver and the other was a spender, the court can and will equitably divide assets. Most of the time, this is a 50/50 division or something very close to it. In the case of retirement assets and pensions, this can be financially significant even in shorter marriages.

The court can also order spousal support in divorce cases. When one party has been a stay at home parent, or sacrificed his or her career in support of the other party’s career, or where one party simply makes significantly more money than the other, the court can order monthly financial assistance in the form of spousal support (known as alimony in other states).

Courts can only award equitable distribution or spousal support where the parties have been married. An annulment would result in the marriage being a legal nullity, permanently extinguishing the possibility of either of these awards. Therefore, while an annulment may seem appealing in theory, the legal protections of a divorce should be pursued when they are available.

Example: Annulment vs. Divorce

The significant difference in legal protections offered by a divorce vs. an annulment was clearly illustrated by the case of MacDougall v. Levick, decided by the Virginia Court of Appeals. In that case, the parties thought they had gotten married legally in December 2002; however, neither party had secured a marriage license prior to the ceremony being held. After realizing their error, in January 2003 the parties obtained a marriage license and had it signed by the rabbi who performed the ceremony. However, they failed to have a second wedding ceremony, and neither husband nor wife was present when the license was signed. As discussed above, a marriage is not valid until a license is obtained and the marriage is solemnized by a person authorized to do so, in that order. In the MacDougall matter, the parties did not follow the proper steps.

Years after the (apparent) marriage of the parties in MacDougall, their relationship deteriorated. The parties negotiated a settlement agreement in 2009, and the wife filed for divorce in 2011. The divorce was then litigated over the course of three years, with legal fees totaling close to $1 million dollars. Prior to conclusion of the litigation, the husband was allowed to amend his pleadings to allege that the parties were never married. The Fairfax County Circuit Court agreed with the husband, finding that the parties were never married. Therefore no property could be divided and the wife was not entitled to spousal support, even though the parties had previously agreed to it in their settlement agreement. The Court of Appeals affirmed this ruling.

The MacDougall case illustrates both the importance of following proper procedures when getting married, and the benefits for many parties of a divorce over an annulment.

It bears mentioning that a legal annulment is not the same as a religious annulment (most commonly granted by the Catholic Church). If you want to seek a religious annulment, that can be done after your secular divorce is completed, and is done through your local parish and diocese. The first step would be to consult your parish priest.

Defenses to Annulment

Virginia Code § 20-89.1 sets forth the defenses to an annulment based on a claim that the marriage is voidable. When the complaining party continued to cohabit with the other party after gaining knowledge of the facts giving rise to what otherwise would have been grounds for annulment, 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.

Our Family Lawyers

When considering the possible dissolution of your marriage, it is best to consult with a family lawyer who can help you understand your legal options, and assist you with pursuing the best course of action for you and your family. Livesay & Myers, P.C. has a team of experienced family lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.