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Say It Ain’t So:

Annulment, Void and Voidable Marriages in North Carolina

Marital Rights Past and Present

In NC, we rarely encounter annulment. Different states have different laws on the matter. My family law professor explained that New England states had more annulments because of their Catholic history. Because divorce was frowned upon in those Catholic areas, annulment became a more acceptable procedure. King Henry VIII was Catholic, and he created the Church of England in order to obtain divorce.

Marital status was key throughout history because of bloodlines, politics, dowries and other reasons. Although modern culture is less concerned about bloodlines and dowries, there are still annulments and marital rights are quite important. Marital status determines rights to equitable distribution of marital property, alimony, survivor’s rights, social security, military benefits, and a host of other legal rights.

Annulment and Divorce

A divorce terminates a valid marriage. On the other hand, an annulment recognizes the fact that there was no valid marriage, although there was a marriage ceremony. The parties were never married in the eyes of the law. At the point a divorce or annulment is granted by the court, the individuals are immediately single and eligible to marry. A child born to a couple whose marriage is annulled is still deemed to be legitimate, meaning the child has the same legal rights as a child born to a married couple.

Our Take on Annulment in NC: Voidable Marriages

When our state grants an annulment, it does so because the marriage is deemed a void marriage. The only type of marriage that is always void under any circumstances is bigamy, when a person is “married” to two spouses instead of one. Any other marriage that is legally flawed is called a voidable marriage, which means it is valid unless and until a judge rules otherwise. In other words, a person in a voidable marriage has the option to ask the court to declare the marriage void. Sometimes, the defect in a voidable marriage may be cured, or ratified in legal terms. For example, a person who has not reached the required age to marry may ratify the marriage if he or she chooses to remain married after the age problem is cured by the passage of time. However, if either “spouse” is under 16 (but otherwise competent to marry), the marriage will not be declared void if the female is pregnant or they have a surviving child.

Voidable Marriages: the Grounds

These marriages might be declared void (i.e., they are voidable), depending on the timing and circumstances:

The parties are closer than first cousins. Yes, sharing grandparents is perfectly acceptable here.

The parties are double first cousins.

A person is not 16 years of age (unless the female is pregnant or the couple has a surviving child).

One party is physically impotent at the time of the marriage.

A person is incapable of contracting the marriage. For example, the person was heavily intoxicated and not capable of legally contracting a marriage.

If the female represents to the male she is pregnant and the parties separate within 45 days of the date they were married, the marriage is voidable after a year of separation if no child is born “within 10 lunar months of the date of separation.”

 

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