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Lack of consummation alone won’t back annulment

divorce2_mainAlthough the newlywed parties had not consummated their marriage and one spouse was pursuing gender transition, the other spouse – who hoped for children – was not entitled to an annulment under Virginia law, a Fairfax Circuit judge has ruled.

The judge said there was nothing to prevent the couple from litigating a divorce, but the unusual facts were insufficient to nullify the marriage outright. Annulment mandates a high bar for evidence, said Fairfax County Circuit Judge David A. Oblon in his Dec. 30 letter opinion.

In particular, annulment for lack of consummation requires a showing of “fraud in the inducement,” Oblon said. The judge’s opinion clarifies “old and dated authorities” and addresses the issue of gender transition for the first time, according to the plaintiff ’s attorney.

‘Marital expungement’ sought

Renee Sun married Joseph Michael Riley on Nov. 19, 2017. Sun testified she wanted a heterosexual partner and wanted children. She said Riley deceived her by not disclosing that he planned to transition from male to female. She said the couple had never had sexual relations.

Riley said he never intended to deceive. He was unaware of the extent of his gender identity issues at the time of marriage, he said. He contended he twice approached his new wife for marital relations, but was rebuffed. He underwent a bilateral orchiectomy on March 29, 2019. Sun contended he told her he was getting a vasectomy. Sun petitioned the court for marriage annulment on Sept. 26.

Oblon observed that some parties might prefer annulment over divorce for religious reasons or as a “form of marital expungement” offering a “clean marital record of sorts.” The biggest difference between annulment and divorce, the judge said, is that annulments don’t bring the benefits of Virginia’s equitable distribution and spousal support laws.

But annulment calls for a high evidentiary burden, Oblon said. He held an ore tenus hearing on Dec. 17.

Nonconsummation insufficient Failure to consummate a marriage through coitus, without more, is not a ground for annulment, the judge said.

There are no statutory grounds for annulment based solely on nonconsummation and Oblon said he found no other authority holding that consummation is a marital requirement.

But fraudulently inducing one to marry is a statutory ground for annulment.

A knowingly false pre-marital promise to engage in coitus post marriage can be fraud and a ground for annulment, Oblon said.

“So, to award an annulment for nonconsummation, a court must find by clear and convincing evidence that one party induced the marriage on a false promise of coitus and not just the fact that the marriage proceeded without coitus,” Oblon wrote.

Olbon said he believed Riley when he testified he entered the marriage with the intent to consummate it, and Sun did not deny Riley’s claim that he tried twice.

Sun failed to carry her burden to prove fraud, the judge concluded.

Transition plans

Oblon said Sun also failed to prove by clear and convincing evidence Riley defrauded her by “never disclosing his true desires.”

The judge said he could understand Sun’s feeling defrauded, especially after Riley’s surgery.

“One can almost hear her pleading, ‘He had to have known his feelings before the wedding and he had a duty to tell me!’” Oblon wrote.

But the parties presented no expert witness or other evidence to help explain the complexities of human sexuality and identity, the judge said, concluding Sun did not prove dishonest motive.

Oblon denied the petition for annulment, ruling Sun failed to prove by clear and convincing evidence that Riley defrauded her to induce their marriage by not telling her he had (1) “no intention of ever consummating the marriage”; and (2) “no intent of remaining a male.”

Oblon’s seven-page opinion is Sun v. Riley (VLW 019-8-117).

“It gives us quite a bit more insight on what the judge is looking for” in annulment actions, said Danielle A. Quinn of Fairfax, attorney for Renee Sun.

It’s also a case of first impression on gender transition issues, Quinn said Jan. 7. “It became evident early on the laws of Virginia have not kept pace with our evolving social norms,” Quinn said.

Quinn said she was still in discussion with Sun about whether to appeal or to seek an uncontested divorce.

Riley was self-represented and was not available for comment.