by Chris Palmer
Mississippi Code Ann. 93-7-1 states that, “All bigamous or incestuous marriages are void, and a declaration of nullity may be obtained at the suit of either party.” A bigamous marriage is one in which one of the parties is already legally married to another. An incestuous marriage is defined by Miss. Code Ann. 93-1-1, which states:
(1) The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his grand-daughter; the son shall not marry the daughter of his father begotten of his stepmother, or his aunt, being his father’s or mother’s sister, nor shall the children of brother or sister, or brothers and sisters intermarry being first cousins by blood. The father shall not marry his son’s widow; a man shall not marry his wife’s daughter, or his wife’s daughter’s daughter, or his wife’s son’s daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void.
(2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.
Marriages that are founded on bigamy or incest are considered void in Mississippi and may be set aside by either spouse or by third parties. Once granted, an annulment is as if the marriage never occurred.
Mississippi Code 93-7-3 addresses situations where marriages are “voidable” by spouses but are not necessarily void unless one of the spouses raises the issue. The statute lists five situations where a marriage is voidable if the situation exists at the time of marriage:
1. Incurable impotency;
2. Adjudicated mental illness or incompetence of either or both parties;
3. Failure to meet licensing requirements if not followed by cohabitation;
4. Lack of consent, whether through physical means, age, mental acuity, fraud or force, provided that the cause for annulment is brought within six months after discovery;
5. Wife’s pregnancy by another, as long as the husband did not know of the pregnancy and the action is brought within six months after discovery of the pregnancy.
Children born from marriages that are annulled for reasons other than incest are considered legitimate and are governed by same rules applied in divorces. Children born of an incestuous marriage are considered illegitimate. Miss. Code Ann. 93-7-5.
Annulments are not as common as divorces and it is rare that a client is entitled to an annulment instead of a divorce. However, if you feel that you may be entitled to an annulment, it is critical that you meet with an attorney immediately since there are time limitations as well as potential defenses that may prohibit an annulment.