The U.S. Supreme Court has recognized the “right to marry, establish a home, and bring up children” as a fundamental right enjoyed by all citizens since the 1920s. It’s not an absolute right, however. Restrictions on marriage and prohibited marriages have a long history dating back centuries. Many laws are aimed at ensuring marriages are consensual and entered into freely. Others seek to maintain a sense of public morals.
Today, all states have laws prohibiting some marriages and a method for annulling (voiding) marriages determined to be undesirable. Below is a summary of South Dakota’s annulment and prohibited marriage laws.
South Dakota Annulment and Prohibited Marriage Laws
Incestuous relationships between parents and children, ancestors and descendents, brothers and sisters (including half brothers and sisters), uncles and nieces and aunts and nephews, and cousins (including half cousins) are prohibited and void from the beginning. Marriage between a stepparent and stepchild are void from the beginning too.
South Dakota law also prohibits bigamy – when a married person marries another person without first annulling or dissolving the prior marriage. While less of a problem these days, a spouse going off for years on end used to raise questions about whether they were still alive and whether the remaining spouse could remarry. South Dakota law makes a later bigamous marriage void from the beginning but provides exceptions for when a former spouse was believed to be dead.
South Dakota adopted a constitutional amendment in 2006 that defined marriage as between a man and a woman and prohibited the recognition of same-sex relationships under any other name. Similar restrictions were created within the statutory code. The U.S. Supreme Court threw out all of these legal barriers when, in 2015, it ruled in Obergefell v. Hodges that state bans on and failure to acknowledge same-sex marriages constituted a violation of the Fourteenth Amendment's guarantee of equal protection.
South Dakota has different provisions on the book prohibiting marriages made without legal consent. These include marriages involving underage persons, marriages obtained through force or fraud, and marriages when a party was considered to be of unsound mind at the time of entering into a marital union. Generally, the person injured is the one who can seek an annulment: a minor can seek an annulment for marrying an adult but the adult can’t seek an annulment for marrying a minor.
A permanent, incurable physical capacity that existed at the time of marriage can be grounds for an annulment as well. And like divorce, courts can order spousal support and make decisions regarding child custody and child support. But while an annulment can be as emotionally difficult and painful as a divorce, legally speaking it should be faster and easier.
| Code Sections | 25-1-1, 25-3-1, et seq. 25-1-8. |
| Grounds for Annulment | Underage marriages; incestuous marriages; bigamous marriages; marriages made when one party was of unsound mind; marriages based on consent obtained by force; marriages based on consent obtained by fraud; marriages where there is a physical incapacity. |
| Time Limits for Obtaining an Annulment | Varies depending on the reason for annulment. |
| Legitimacy of Children | Children begotten before an annulment based on bigamy or an annulment based on mental illness are legitimate. |
| Prohibited Marriages | Parents and children, ancestors and descendents, brothers and sisters, uncles and nieces, aunts and nephews, cousins, stepparents and stepchildren, bigamous marriages. |
Related Resources for Annulment and Prohibited Marriage Laws
Marriage and annulment questions often arise in difficult circumstances. You can read more about marriage laws and research applicable laws in your state. For anyone who needs to know more about marriage laws or who might seek an annulment, we recommend speaking with a local family law attorney.
