Legally Separate, Get Divorced, or Annul a Marriage

With the clarification that LGBT couples have the legal right to marry in many states and to have the marriages entered into in other states legally recognized, same sex couples have been marrying. For some couples, the legal recognition of their marriage means they have the legal right to get divorced.  One such couple, WNBA stars Brittney Griner and Glory Johnson apparently have gotten married and, according to this article, less than 1 month later may have decided to legally end their relationship.

What interests me about this announcement is not that they may be seeking to legally terminate their relationship after only 29 days – their celebrity marriage would not even be the shortest. I was struck by the comment from Brittney Griner who allegedly stated, “”Last Wednesday, Glory and I agreed to either legally separate, get divorced, or annul our marriage,”  There is a difference between each of these.

First off, as I stated in a prior post, legal separation exists in some jurisdictions. It is a requirement for a party to obtain some relief from the court, spousal support for example. It is not a requirement in Pennsylvania.

With an annulment, the Court is making a determination that the marriage never occurred for legal reasons. When one is seeking  an annulment under Pennsylvania law, the first issue is whether the marriage is void or voidable.

A void marriage is one that cannot be recognized by the law for public policy reasons.  Under Pennsylvania law, a marriage is void under any of the following circumstances:

• Either person was still married to someone else at the time of this marriage, i.e. bigamy.
• The parties are related within certain “degrees of consanguinity” meaning their are close blood relatives. The law specifies which relations are too close (like aunt/nephew) and which are not (second cousin twice removed), for example.
• Either party was incapable of consenting by reason of insanity or serious mental disorder, lacked legal capacity to consent, or did not intend to consent to the marriage.
• Where either party to a purported common-law marriage was under 18 years of age.

For some of these situations, it is possible for the impediment to the marriage to disappear. In such case, if the parties continue to live together after the impediment is gone, then the parties are considered married, For example, Mary married Peter many years ago; however, they have been separated for the last several years. Peter filed for divorce and Mary thought that the divorce decree had been entered when she married John.  It turns out that the divorce between Mary and Peter was not signed by the Judge until 6 months after Mary married John. On the day after that divorce decree was entered, if Mary and John were still living together, they are considered legally married.

A voidable marriage is one which can be declared invalid by the Court, but only if one of the parties challenges the validity of the marriage. By statute, the grounds for annulment of a voidable marriages under Pennsylvania law are as follows:

• Where either party was under the age of 16 years at the time of marriage (unless the marriage was expressly authorized by the court)
• Where either party was 16 or 17 years of age but lacked the consent of parent or guardian or express authorization of the court; this basis for an annulment has two additional requirements: the marriage has to be ratified by the parties upon reaching age 18 and the action for annulment has to be commenced within 60 days of the marriage ceremony.
• Where either party was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony.
• Where either party was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other party prior to the marriage.
• Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.

Notice there is nothing in the Pennsylvania statute that talks about a failure to consummate a marriage.

No facts were mentioned in the article which would give rise to any of the grounds for annulment on the basis of the marriage between Brittney and Glory being void.  As far as the “voidable” grounds are concerned, there are no facts that would be applicable to Pennsylvania law either.  Maybe one of the parties are going to allege some type of fraud, but once the fraud was disclosed, cohabitation had to stop.  Just not wanting to be married to someone is not a valid basis for a legal annulment under Pennsylvania law.

It looks like, under Pennsylvania law, Brittney and Glory would have to get a divorce and not an annulment.