Virginia Annulment: Void vs. Voidable Marriages

Determining if your marriage is void or voidable under Virginia law can help you decide what steps to take in planning your family’s future.

From a legal perspective, marriages are essentially contracts which connect the finances, property, and benefits of two previously separate individuals.

As noted by Cornell’s Legal Information Institute, the basic elements of a marriage are:

  1. The parties’ legal ability to marry each other.
  2. Mutual consent of the parties.
  3. A marriage contract as required by [state] law.

If any one of these basic elements is missing, your marriage may be void from the very beginning. That is, the marriage itself may be unlawful, and you might not even need to take any further action to annul the marriage in Virginia.

Some marriages are not presumed void, but are still voidable at a judge’s discretion. This usually happens due to morally ambiguous, if not directly illegal, circumstances.

Essentially, the difference between void and voidable marriages is that void marriages are void from the start, while voidable marriages can be annulled by taking the case before a judge.

Knowing the difference between void and voidable marriages, and knowing what circumstances give rise to each, can help you determine what your next steps should be if you’re considering annulment in Virginia.

Virginia Annulment: Void Marriages

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If your marriage is void under Virginia law, it is considered void ab initio; in other words, it was void from the start.

In this case, you don’t need to appear before a judge to have them formally enter an annulment into the court system. You can go on and marry someone else without the risk of breaking Virginia’s marriage laws.

However, it’s still smart to get proof of your voided marriage from the clerk of your local circuit court. This is because Virginia’s annulment section requires “proof of the nullity of the marriage.”

In Virginia, your marriage can be void for a number of reasons. Three of the most common are age, incest, and bigamy. We’ll outline each of these below.

Void by Age

In Virginia, you must be over the age of 18 to legally marry (or 16 if you’re legally emancipated). Specifically:

“All marriages solemnized on or after July 1, 2016, when either or both of the parties were, at the time of the solemnization, under the age of 18…shall be void…[This section] shall not apply to a lawful marriage entered in another state or country prior to the parties [moving to Virginia].”

Virginia Code § 20-45.1(C)

In Virginia, this means either of you was under the age of eighteen when the marriage was “solemnized” (more on that later).

It’s important to note that this law was changed in 2016, so older writing on the subject no longer applies. For example, it is not longer legal for minors to marry with the consent of their parents if one of the minors is pregnant.

Void by Incest

Marriages between close relatives are also void in Virginia. As specifically noted by the Code, the following marriages are prohibited:

  • A marriage between an ancestor and descendant (i.e. “parent and child”), or between a brother and sister, whether the relationship is by half or whole blood (or by adoption).
  • A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by half or whole blood.

Any marriage purportedly entered into that falls into those prohibited categories is void from the start.

Void by Bigamy

Finally, a marriage may also be void if one or both spouses were still married to another person prior to entering the marriage.

If the spouse was lawfully married in Virginia or another state, that marriage must be terminated through divorce or annulment before your current marriage can be valid.

Courts look at the laws of the state where the spouse was previously married to determine if that prior marriage was void from the start, voidable, or if it was perfectly legal.

Virginia Annulment: Voidable Marriages

An important part of wedding ceremony is signing a marriage license

Voidable marriages, on the other hand, require that you seek a judicial decree of annulment. In this scenario, you are still legally married until you appear in front of a judge and convince them to void your marriage.

If you married someone and you believe the marriage is voidable for one of the following reasons, you will have to state your case and show with clear evidence why a judge should void your marriage.

Voidable by Fraud or Duress

If your marriage was induced by fraud, or you were under duress when you said “I do,” your marriage may be voidable.

Virginia uses a two-step test to determine if fraud is grounds for a voidable marriage. Essentially, this test boils down to a “but for” argument which says “But for the fraud, would the innocent party still enter into the marriage?”

It’s your burden to show that you were under duress or were the victim of fraud to have a voidable marriage annulled.

It’s not enough to just find out, for example, that your spouse isn’t as wealthy as they said they were. The fraud needs to be a serious attempt to mislead you about their situation.

For example, you could annul the marriage by fraud if your spouse married you using a false identity, or committed some other other fraud of an equally egregious character.

Voidable by Lack of Solemnization

Your marriage could also be voidable if it was not performed under license and then “solemnized.”

A recent case from the Virginia Court of Appeals makes it clear that a marriage can be solemnized (this is a fancy word for the actual ceremony) in any number of ways—on a beach, in a church, etc. The ceremony must be something more than simply mailing the certificate to be signed by the officiant.

Additionally, your marriage certificate needs to be issued before the marriage is solemnized, and in Virginia, that official ceremony needs to happen within sixty days of the certificate’s being issued.

Voidable by Impotence, Criminal History, or Unfaithfulness

The Virginia Code also includes a section which outlines several additional scenarios which could lead to a voidable marriage.

Specifically, paragraph B of the annulment section states 5 scenarios where you can annul a marriage:

  1. In the case of natural or incurable impotency of body existing at the time of entering into the marriage contract.
  2. When, prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony.
  3. When, at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband.
  4. Where the husband, without the knowledge of the wife, had fathered a child born to a woman other than the wife within 10 months after the date of the solemnization of the marriage.
  5. Where, prior to the marriage, either party had been, without the knowledge of the other, a prostitute.

In any of these 5 scenarios, you can file for annulment as long as you can prove the accusations in court.

Two-Year Requirement for Virginia Annulments

As one final note, you should also remember that Virginia has a two-year requirement for filing for an annulment.

If you choose to continue living with your spouse after learning of the annulable element of your marriage, you cannot file for an annulment.

Similarly, if you remain married for two years, you can also not file for an annulment.

Conclusion

Woman sitting on ground at the office with computer in her lap

The bottom line is that, in certain scenarios, there are ways to end your marriage aside from divorce.

If your marriage is void, you don’t have to go through any extra steps since your marriage wasn’t legal in the first place. If your marriage is voidable, you simply need to prove your reasoning in front of a judge.

In either scenario, it’s smart to speak with an experienced family law attorney before making any final decisions. Annulment is a complicated area of Virginia law, so you’ll want to make sure you know what you’re doing before arriving in court.

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