Can I get an Annulment?

Obtaining an Annulment in North Carolina is not quite as easy as many individuals presume. North Carolina doesn’t allow every marriage to be annulled. The North Carolina General Statutes have stringent statutory requirements that must be met in order for an individual to be eligible for an annulment. A marriage can only be annulled if:

Individuals who are married are nearer than first cousins
Two individuals are double first cousins
Either of the two individuals whom are married, male or female, are below the age of sixteen (16)
A marriage occurs to an individual who is already married
Either individual is impotent when the marriage occurs
An individual entering into the marriage is incompetent or incapable of contracting
If a marriage is contracted under representation and the belief that the female partner to a marriage is pregnant and a separation occurs between the parties within forty five (45) days of the marriage and continues for one (1) year, unless a child is born within ten (10) months of the date of separation.

If you do meet any of these requirements, an annulment may be granted, once granted, the marriage will be declared void from the date of inception, which is also known as void ab initio.

Void and voidable are not the same thing under G.S. 51-3

In North Carolina, G.S. 51-3 is headed “Want of capacity; void and voidable marriages”, and the distinction in that heading decides a great deal. A void marriage never existed in law and can generally be attacked by anyone at any time, though G.S. 51-3 provides that no marriage followed by cohabitation and the birth of issue may be declared void after the death of either of the parties for any of the causes stated in that section except bigamy. A voidable marriage is valid for civil purposes and produces every ordinary consequence of marriage unless and until one of the parties obtains a judgment declaring it void from the beginning.

Although G.S. 51-3 uses the word “void” for most of the categories it lists, reserving “voidable” for the pregnancy ground, North Carolina courts have not read every one of the “void” categories that way. Bigamous and incestuous marriages are treated as void from the outset. A marriage attacked on the ground that a party was “at the time physically impotent” has long been treated as voidable rather than void, following Smith v. Morehead, 59 N.C. 360 (1863). A marriage attacked on the ground that a party was incapable of contracting from want of understanding was likewise held to be voidable and not void in Geitner v. Townsend, 67 N.C. App. 159 (1984). The practical consequence is that a marriage in the voidable class stands, and is valid for all civil purposes, unless the injured party brings the action and obtains a judgment.

Incapacity from want of will or understanding

In North Carolina, G.S. 51-3 makes void a marriage “between persons either of whom is at the time incapable of contracting from want of will or understanding”. That covers a party who lacked the mental capacity to understand the nature of the contract of marriage, and it is the provision under which claims of intoxication, cognitive impairment and undue influence are advanced.

The courts have placed this class of case on the voidable side of the line. Geitner v. Townsend holds that a marriage of a person incapable of contracting for want of understanding is voidable rather than void, so that it is valid until annulled in a direct proceeding, and that a prior adjudication of incompetency is not conclusive on the question of capacity to marry later. North Carolina’s civil pattern jury instructions treat the same territory as voidable marriage, with separate instructions on lack of sufficient mental capacity and understanding and on undue influence. Because capacity is judged as at the moment of the ceremony, the evidence in these cases is usually directed at that day rather than at the state of the marriage afterwards.

The pregnancy ground, and the deadlines built into it

In North Carolina, G.S. 51-3 provides a further, narrow ground: “A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage which separation has been continuous for a period of one year, shall be voidable unless a child shall have been born to the parties within 10 lunar months of the date of separation.”

Every element of that sentence carries weight. The representation and belief must have existed at the time of the marriage, the separation must have begun within 45 days of it, the separation must have run continuously for a year, and no child can have been born to the parties within 10 lunar months of separation. Miss any one of those and the ground is not available. This is also the closest North Carolina comes to a fraud ground for annulment; the statute otherwise names kinship, age, bigamy, physical impotence and incapacity from want of will or understanding, and not misrepresentation generally.

The proviso that closes the door on some annulments

In North Carolina, G.S. 51-3 contains a proviso that defeats an annulment brought too late in certain families: “No marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section except for bigamy.” Where the parties lived together, a child was born of the marriage and one spouse has since died, bigamy is the only surviving ground.

Age operates in a related way, and the rules sit in G.S. 51-2 rather than in G.S. 51-3. G.S. 51-2(a) provides that all unmarried persons of 18 years or older may lawfully marry, and G.S. 51-2(b1) makes it “unlawful for any person under 16 years of age to marry”. Between those two points, G.S. 51-2(a1) allows a person over 16 and under 18 to marry a person no more than four years older, and permits the register of deeds to issue a license for that marriage only after there has been filed with the register of deeds either a certified copy of an order issued by a district court “authorizing the marriage as provided in G.S. 51-2.1”, or a written consent to the marriage signed by a parent having full or joint legal custody of the underage party, or by a person, agency or institution having legal custody or serving as guardian of the underage party. The court order is therefore one of two routes and not the only one. Written consent is not required for an emancipated minor where a certificate of emancipation or a certified copy of a final decree or certificate of emancipation is filed with the register of deeds.

The judicial route has requirements of its own. Under G.S. 51-2.1 the underage party brings a civil action in the district court, a guardian ad litem who must be an attorney is appointed for that party, and the court must find that the underage party is capable of assuming the responsibilities of marriage and that the marriage will serve the best interest of the underage party. The section provides that the fact that the female is pregnant, or has given birth to a child, does not alone establish that the marriage is in her best interest, and that where authorization is refused the underage party may not seek the authorization of any court again under that section until a year after the entry of the last judicial ruling. G.S. 51-2(c) adds that where a license is procured by a person under 18 by fraud or misrepresentation, a parent, a person, agency or institution having legal custody or serving as guardian, or a guardian ad litem appointed under G.S. 51-2.1(b), is a proper party to bring an action to annul the marriage.

An annulment is a contested proceeding even when nobody contests it

In North Carolina, an action to annul is brought in the district court division under G.S. 7A-244, which in Charlotte means the District Court in Mecklenburg County. G.S. 50-4 provides that the district court, during a session of court, on application made by either party to a marriage contracted contrary to the prohibitions in the Chapter entitled Marriage or declared void by that Chapter, “may declare such marriage void from the beginning, subject, nevertheless, to G.S. 51-3.” The verb is permissive, and the proviso in G.S. 51-3 is carried across with it.

The proof requirement is the same one that applies to divorce. Under G.S. 50-10 the material facts in every complaint asking for a divorce or an annulment “shall be deemed to be denied by the defendant”, and no judgment may be given for the plaintiff until those facts have been found by a judge or a jury. An unanswered complaint therefore does not produce an annulment by default; the ground still has to be established on evidence.

The practical difficulty in most annulment cases is evidential rather than legal. Kinship, a prior undissolved marriage and age are matters of record. Impotence, incapacity and the pregnancy ground depend on testimony about what was true on the day of the ceremony, often years earlier.

What an annulment does to children and to property

In North Carolina, a child’s status is protected whatever happens to the marriage. G.S. 50-11.1 provides that “a child born of voidable marriage or a bigamous marriage is legitimate notwithstanding the annulment of the marriage.” Custody and child support are then decided under G.S. 50-13.2 and the related sections in the same way as in any other case, on the standard of what will best promote the interest and welfare of the child.

Property is less straightforward. Equitable distribution under G.S. 50-20 operates on marital property, defined as property “acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties”, and alimony under G.S. 50-16.3A depends on there having been a marriage between a dependent and a supporting spouse. Whether those claims are available after an annulment turns on whether the marriage was void from the outset or merely voidable, which is why the classification discussed above matters more than it first appears.

An annulment also affects rights in a former spouse’s estate. G.S. 31A-1(a)(1) names “a spouse from whom or by whom an absolute divorce or marriage annulment has been obtained”, and G.S. 31A-1(b) sets out what is lost: rights of intestate succession in the other spouse’s estate, the right to claim or succeed to a homestead, the right to petition for an elective share, the right to a year’s allowance, and the right to administer the estate.

Common questions

Is a short marriage a ground for annulment in North Carolina?

No. The length of the marriage is not a ground. G.S. 51-3 lists the categories that make a marriage void or voidable — kinship nearer than first cousins, double first cousins, a party under 16, a party with a husband or wife living at the time, physical impotence, incapacity from want of will or understanding, and the pregnancy provision. A marriage that falls outside those categories is ended by absolute divorce under G.S. 50-6 however briefly it lasted.

Can a marriage be annulled in North Carolina for fraud?

There is no general fraud ground. The only misrepresentation expressly addressed in G.S. 51-3 is a marriage contracted under a representation and belief that the female partner is pregnant, and that ground requires separation within 45 days, continuous separation for a year, and no child born to the parties within 10 lunar months of separation. Other deceptions bear on the statute only if they amount to incapacity from want of will or understanding. Separately, G.S. 51-2(c) allows a parent, a custodian or guardian, or a guardian ad litem to bring an action to annul where a person under 18 procured the license by fraud or misrepresentation.

Does an annulment mean the marriage never existed?

A judgment under G.S. 50-4 declares the marriage “void from the beginning”. That does not erase every consequence. G.S. 50-11.1 keeps a child born of a voidable or bigamous marriage legitimate, and G.S. 31A-1 bars the estate rights of a spouse from whom or by whom an annulment has been obtained. Whether claims that depend on a marriage remain available turns on whether the marriage was void or voidable, and a voidable marriage is valid for civil purposes until a court annuls it.

Who hears an annulment case in Charlotte?

The district court division. G.S. 7A-244 makes the district court the proper division, without regard to the amount in controversy, for annulment, divorce, equitable distribution, alimony, child support and child custody, so a Charlotte case is heard in the District Court in Mecklenburg County. Under G.S. 50-10 the material facts must be found by a judge or a jury even where the defendant does not answer.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.