Void Vs. Voidable Marriages in Virginia
While many marriages end in divorce, there are other ways marriages can end. In some cases, a marriage may be void or voidable as well. It’s important to learn the differences and meet with a knowledgeable Virginia family law attorney if you have any questions about the validity of your marriage.
A marriage that is void is one where the marriage is void and invalid from its beginning. It means the marriage was never valid from the start, and therefore there is no need to terminate. In Virginia, the Code of Virginia § 20-38.1 prohibits certain marriages, making them illegal and void from the start. These include:
- If one of the parties isn’t officially divorced yet and they enter into a new marriage, a term called bigamy.
- Marriages that take place between relatives. This can include a parent and child, or siblings, like a brother and sister. It doesn’t matter whether the relationship is half or whole blood, or if one of the parties was adopted.
- Marriages between an uncle and niece, or between an aunt and a nephew. It doesn’t matter whether the relationship is by half blood or whole blood.
A voidable marriage is a marriage that can be “cancelled” if contested in court by one of the parties to the marriage. Under the Code of Virginia §20-45.1, a marriage could be deemed voidable under the following circumstances:
- The marriage has not been consummated due to incapacity of one party (i.e., impotence), or a willful refusal to consummate it
- Fraud, duress, unsound mind, or inability to give legal consent
- If your spouse was suffering from a communicable venereal disease
- If your spouse has been convicted of a crime or fathered a child to another woman born within 10 months after the marriage date
- If the wife is pregnant by another man
Circumstances where a marriage can be deemed voidable require that the affronted party had no idea the voidable issue existed at the time of marriage, and you will need to prove that to the court as well.
When an Annulment is Not Granted
In some cases, marriages that are theoretically voidable may be denied an annulment under Virginia Code Section §20-89.1. In alleged cases of duress or fraud, if the applying party has continued to cohabitate with the spouse after finding out about the facts, no annulment will be granted. You need to move out immediately or require your soon-to-be-ex to vacate the shared residence. And, if the parties were married for two years or more prior to commencing the action, no annulment will be granted either.
Contact a Virginia Family Law Attorney
If you have questions about the validity of your marriage or plan to seek an annulment in Virginia, it’s important to discuss your options with a Leesburg attorney who specializes in Virginia divorces. Contact the team at Whitbeck Cisneros McElroy PC today to schedule an appointment. We’re a full-service family law firm and can handle a variety of matters, including divorce, child custody and support, alimony, domestic abuse situations, and more.