This guest post is offered by Megan Smith, Regent Law Family Law student:
In
Virginia, there are nine possible grounds for annulment. Under Virginia Code §
20-38.1, there are two grounds for annulment that make a marriage void as a
matter of law—bigamy and incest. Whereas, under Virginia Code §20-89.1, there
are seven grounds that make a marriage voidable. The first ground for a
voidable marriage is fraud or duress; the second is mental incompetence; the
third is physical impotence; the fourth is if the husband had a child with
another woman within ten months of the marriage unbeknownst to the wife; the
fifth is if the wife is pregnant with a child of another man at the time of the
marriage unbeknownst to the husband; the sixth is if 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 lastly, the seventh is when a marriage took place
after July 1, 2016, and one of the party’s to the marriage was under the age of
majority having not been emancipated.
If one’s
marriage is void as a matter of law, the marriage was void from the beginning,
and therefore, no annulment is necessary. However, if one’s marriage is
voidable, receiving an annulment will require a judicial determination.
Nonetheless, there are two limitations placed on individuals seeking to annul
their marriage on voidable grounds. First, if an individual continues to
cohabit after knowledge of information that gives rise to a ground for
annulment, there is a presumption of condonation. Thus, cohabitation after
knowledge bars an individual from seeking an annulment. Second, there is a
two-year statute of limitation on seeking an annulment; therefore, parties who
find that their marriage could have been annulled having been married for two
or more years would have to proceed with a divorce rather than an annulment.
Nonetheless,
despite the limitations on voidable marriages, there is no statute of
limitations nor defense in the Virginia Code for void marriages due to bigamy
or incest. Coincidentally, both bigamy and incest likewise constitute a crime
in Virginia and can be punishable as such.
At first
glance, society at large, or at least the Christian community, would not
contend that bigamous or incestuous marriages should be valid under the law.
However, both categories of void marriages present their own set of possible
issues that could lead individuals to second guess whether such marriages
should truly be void or at least punishable under the law.
Bigamy: Is it a Crime or a
Constitutional Right?
First,
turning to bigamous marriages, it begs the question of whether individuals have
a fundamental right to such marriages. The Supreme Court has never held that
individuals have said right; however, it has decided a slew of cases extending
the protection of marriage under the Constitution. For example, in Griswold v. Connecticut,
the Supreme Court held that there was a fundamental right to marital privacy,
and therefore, married couples should have access to contraceptives. 381 U.S.
479 (1965). In Eisenstadt
v. Baird, the Supreme Court extended this protection and held that
married and unmarried couples should have access to contraceptives. 405 U.S.
438 (1972). Furthermore, in Lawrence v. Texas, the Supreme Court extended the
right to privacy to protect individuals who wanted to engage in sodomy. 539
U.S. 558 (2003). Lastly, in Obergefell v. Hodges, the Supreme Court again
extended the right to marriage by holding that there was a fundamental right to
same-sex marriage. 576 U.S. 644 (2015).
Therefore, with the Court
relying on substantive due process to extend fundamental rights of marriage and
the privacy of the individual, it is not too far-fetched to think that the
Court could potentially find that there is a fundamental right to bigamous
marriages. In fact, bigamous marriages could present a stronger constitutional
case than that of same-sex marriage.
In Obergefell, the
Court relied on substantive due process and the idea that there was a
fundamental right to same-sex marriage, casting aside its test of deeply rooted
in the nation’s history and implicit in ordered liberty in reaching its
decision. Nonetheless, those who wish to engage in bigamy or polygamy often
wish to do so for religious purposes. Thus, the Court could potentially find
that bigamous marriages are constitutional not only using the concept of
substantive due process but also under the Free Exercise Clause. However, it is
important to note that the Court has historically been unwilling to do so.
See Reynolds
v. United States, 98 U.S. 145 (1879).
Therefore, should bigamous
marriages be found void, and should individuals be punished under the law for
engaging in such? If looking at such marriages from a Christian perspective,
finding bigamous marriages void seems to be a no-brainer, as God created
marriage to be between one man and one woman. However, the answer becomes less
clear when considering such marriages from a constitutional perspective.
ART and Accidental Incest
Incestuous marriages are
likely where most individuals can find common ground that such marriages should
not only be invalid but likewise punishable under the law. However, incestuous
marriages have the potential to create their own set of unique challenges,
especially in a world with Assisted Reproductive Technology (or “ART”).
According to The
Atlantic, an estimated 30,000 to 60,000
children are conceived by way of a sperm donor each year. Sarah Zhang, The
Children of Sperm Donors Want to Change the Rules of Conception, The Atlantic (Oct. 15, 2021). However,
this number could be significantly higher due to the lack of adequate
recordkeeping in the fertility industry. Additionally, in the United States,
there are no limits set forth on how many children a sperm donor can father,
thereby creating a situation where hundreds of children could be conceived
using the same donor. With the increasing number of children being conceived
using a sperm donor coupled with the lack of regulation in the fertility
industry, there is an increasing chance of accidental incest. In fact, a quick
Google search of “accidental incest due to sperm donor” results in dozens of
horror stories of individuals engaging in incestuous relationships unknowingly
due to their mother’s use of the same sperm donor.
Therefore, while it is hard
to dispute the benefits of ART, such use can likewise create difficult,
gut-wrenching situations. For example, in an extreme situation, a married
couple could potentially discover that they are related, their marriage is void
as a matter of law, they could be facing criminal charges, they have
unknowingly been living in sin, and if they were to have children, their
children could potentially face health issues due to inbreeding all in one
fatal swoop. Furthermore, these potential consequences would not even begin to
address the trauma that would reveal itself following such discoveries.
Thus, such possibilities beg
the question of whether the burden should be placed on the individual to
discover the possibility of incest before engaging in a romantic relationship
or if the fertility industry should bear the burden and be held accountable for
their failure to properly regulate the field of ART and place limits on sperm
donors?
Grounds for annulment in
Virginia raise questions that affect families, and individuals, particularly
those who may not even be aware that they are creating such situations that qualify
as and result in a void marriage.
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