Marriages can break down for many different reasons, and one less common reason is the non-consummation of the marriage. In such circumstances, one party may prefer to seek an annulment of the marriage as opposed to a divorce, which may be for personal reasons such as religion, or perhaps even to have a clean marital record moving forward. However, the net legal effect of an annulment versus a divorce is significant. In the state of Virginia, not only will the law treat the annulled marriage as never having happened, but the legal remedies available upon a divorce—such as equitable distribution (the fair distribution of assets and debts) and spousal support—are not available in an annulment. Consequently, an annulment requires a high bar for evidence as reaffirmed by the Circuit Court of Fairfax County in the recent case of Renee Sun v. Joseph RileyRenee Sun v. Joseph Riley. In this case, the court reviewed Virginia’s authorities on annulment, and addressed the impact of gender transition in the breakdown of the marriage.
The parties in this case married on November 19, 2017, but their marriage was never consummated. The wife petitioned for annulment on September 26, 2019, claiming the husband had deceived her into marriage by not telling her (1) he had no intention of consummating the marriage, and (2) he intended to transition gender from male to female. The husband testified that he started taking female hormones approximately six months prior to the marriage, which the wife was aware of, but that he was unsure of his gender identity at the time of their marriage. He categorically denied deceiving the wife, and instead testified that despite his best efforts to curb his feelings, his desire to transition to female only grew stronger with time after their marriage. In March 2019, the husband underwent a surgical procedure for gender reassignment. The wife testified that she did not know the true reason behind the husband’s female hormone treatment prior to their marriage, nor of the husband’s intention to go through gender reassignment. The issues before the Court were twofold: (1) Was the lack of consummation alone a sufficient ground for an annulment? and (2) Did the husband deceive the wife, by inducing her to marry him without telling her of his intention to go through gender reassignment?
The grounds for annulment in the state of Virginia are set out in Virginia Code § 20-89.1, which does not include failure to consummate the marriage. The judge in this matter confirmed that, although these grounds “are not exclusive”, having conducted a review of Virginia’s statutes and case law on this topic, non-consummation alone is not a sufficient ground for annulment. Defrauding someone to marry, however, is a statutory ground for annulment, and the party alleging fraud has the burden of proving the fraud. The judge held that a marriage annulment on non-consummation, requires clear evidence that one party induced the other into marriage on a false promise of consummation, and not just the fact that the marriage was not consummated. That the element of fraud is required in the inducement to marriage.
The husband testified that he entered the marriage with the full intention of consummating it, and approached the wife on two separate occasions in order to consummate the marriage, but that he was rejected. The judge noted that the wife did not deny that these advances occurred, but rather testified that she could not recall them. The judge further noted that the wife herself did not approach the husband in order to engage in marital relations, nor did she initiate conversations with the husband to discuss their lack of marital relations, despite testifying that she wanted children with the husband.
The wife further argued that the husband defrauded her into marriage by not telling her of his intention to go through gender reassignment, and by lying to her about undergoing medical treatments both prior to and after the marriage for this purpose. The husband, however, testified that he never wanted to be transgender, and he did his best to curb the feelings. The husband also contended that his feelings developed and intensified with time after the marriage. The parties did not present any expert evidence to help clarify the intricacies of human identity and sexuality. While the judge sympathized with the wife’s feelings of being defrauded, in order to satisfy the legal requirements for an annulment, he confirmed that; “the Court must look at what each party knew at the time of the marriage and not what each learned after the marriage” and that, “the Court must consider that people are not static; they change over time – some in ways more dramatic than others”.
The Court, having considered all the evidence, ultimately believed the husband’s testimony that he entered the marriage with the intention of consummating the marriage, and that although he was unsure of his sexual identity, he entered the marriage identifying as a male and wished to continue as such at the time. The judge ruled that the wife had not satisfied her burden of proving fraud in the inducement of the marriage. As a result, the Court denied the wife’s petition for annulment.
This case highlights the complexities surrounding the grounds for an annulment, and satisfying the evidentiary burden of proof which rests with the petitioner. It is difficult to obtain an annulment, and any such claim should be thoroughly invested by an experienced family law attorney before proceeding in court.