Both annulments and divorce in North Carolina end a marriage, but they do so through different legal mechanisms.
- A divorce acknowledges that a legal marriage agreement once existed, but it has been formally dissolved.
- An annulment denies that a legal marriage was ever created. For some reason, the two partners were not legally entitled to marry in the first place, and so the “marriage” they had was not one the law can recognize as legitimate.
Few marriages in North Carolina actually qualify for an annulment, because the grounds for negating a marriage are so limited. It is the burden of the party requesting an annulment to prove to the court that the requirements are met. If your Wilmington marriage law attorney can demonstrate that, the judge must agree that the grounds for annulment are satisfied and that there never was a legal marriage.
North Carolina relies on two terms from contract law, void and voidable, to distinguish marriages that can be annulled. Marriages that are void could never have been valid in the first place.
The single example here is bigamy. If one of the partners is already legally married to a living spouse (in North Carolina or elsewhere), that person cannot legally marry again, period. A bigamous marriage is never valid. Upon proof that the marriage is bigamous, the District Court will annul the marriage.
The other class of marriages subject to annulment is called voidable. A voidable marriage is treated as a valid one until one of the parties asks for an annulment. The Court will invalidate these marriages if either party requests it (and provides adequate proof).
- Marriage to close relatives. A marriage is voidable if the couple are closer relatives than first cousins—for example, parent and child, or siblings. A marriage between double first cousins is also voidable; this occurs if the parents of the husband are each siblings to the parents of the wife.
- Underage marriage. If either of the parties is under age 16 at the time of the marriage, it is voidable. However, if the woman is aged 15 or younger and is either pregnant or has given birth, and the child is alive, then the marriage is considered valid.
- Impotence. If either of the parties is unable to have children at the time of marriage, it is voidable.
- Mental incapacity. If either of the parties is unable to agree to marriage, or unable to understand what constitutes being married, due to mental limitations or mental incompetence—“from want of will or understanding” is how the statute phrases it—then the marriage is voidable.
- Fraud. The law mentions only one set of circumstances where fraud makes a marriage voidable. If the couple marries because the man has been told the woman is pregnant with his child, and the couple separates within 45 days of the marriage and continues to live separate and apart for a year or longer—and no child of the two is born within ten months of the start of separation—then the marriage is voidable.
There are some limits on annulments of voidable marriages. A voidable marriage cannot be annulled if the couple had been living together as a married couple, and had a child together, and now one of the couple has died. In some cases, the parties can end the voidable condition of their marriage by a special legal declaration—sometimes called ratification—that permanently waives the right to annul the marriage. For instance, someone who was underage at the time of marriage can, after age 18, ratify the decision to marry. In doing so, she affirms the marriage as a valid one; it’s no longer considered voidable and cannot be annulled.
"Marry in haste, repent at leisure”
It’s almost impossible to successfully obtain a North Carolina annulment without the advice of an experienced domestic relations lawyer. Your family law attorney will probably advise you to file an alternate claim for divorce, in case the annulment is not granted.
As you can see, the possibility of annulment is heavily dependent on the facts of the individual case. At Speaks Law Firm, we are known for our delicacy and tact in dealing with sensitive family issues such as these. Please take the time to call us at 910-341-7570 or toll-free at 877-593-4233 to learn how we would approach your case to obtain the most favorable outcome for you.