Annulment of a Marriage in North Carolina

Laws in the State of North Carolina provide two legal processes for requesting a court to declare the end of a marriage: divorce and annulment. While most people understand divorce proceedings, there are many misconceptions about annulment of a marriage.

A civil court action for annulment is not the same as annulment of a marriage in a religious context. Each state determines whether annulment is available in state courts, and on what grounds a judge may grant an annulment. North Carolina courts have authority to grant annulment in very limited circumstances, based on state statutory provisions and precedent set in court decisions.

Common Misconceptions About Annulment

There are a number of common misconceptions about court annulment of a marriage. The most common is a belief that annulment is available if a marriage is recent and has not lasted a specific amount of time. In North Carolina, length of the marriage is irrelevant in an annulment determination. Shortness of a marriage is not a basis for a judge to grant an annulment.

A second common misconception is that a spouse can get an annulment if a marriage has not been consummated through sexual relations of the spouses. That reason also is not a basis for asking a North Carolina court to annul a marriage.

A North Carolina judge has authority to grant annulment only in very limited situations involving void or voidable marriages, as defined by state law.

Void Marriages in North Carolina

State law provides that only one set of circumstances makes a marriage void: Bigamy. If one of the parties to a marriage is already married to a third person, that party cannot marry another person, so the second marriage is void — meaning that it is completely invalid. Under the law, the marriage never existed.

While a court order is not necessary to invalidate a void marriage, a person whose spouse was already married to someone else may wish to petition the court for annulment of the void marriage. The court order then constitutes a legal record that the marriage was invalid.

Voidable Marriages in North Carolina

North Carolina law provides five situations in which a court has authority to grant an annulment for a voidable marriage. A voidable marriage is one that is not invalid under law (unlike a marriage involving bigamy). A voidable marriage becomes invalid only if the court grants an annulment.

Situations in which a North Carolina court may grant annulment of a marriage are limited to:

• Family member marriages: Spouses are more closely related than first cousins or are double cousins (children resulting when two siblings from one family marry two siblings from another family are “double cousins”);
• Underage spouse: At least one spouse is under age 16, with specific exceptions;
• Impotence: A spouse is medically diagnosed as physically impotent;
• Lack of mental capacity: A spouse was incapable of contracting (forming the intent to marry) due to lack of will or understanding;
• False pretenses: A marriage based on a representation of the woman’s pregnancy, followed by separation within 45 days of the marriage and continuous separation for at least one year, unless a child was born within 10 months of the date of separation.

Even if a marriage meets one of the criteria for a voidable marriage, the spouses may lose the ability to have the marriage annulled. If the spouses in a voidable marriage live together after the marriage and have a child together, the marriage is validated under North Carolina law. If those spouses then wish to end the marriage, they would file for divorce, not annulment. (This rule does not apply to void bigamous marriages.)

In any petition for annulment, the filing party must demonstrate through evidence that the statutory conditions for an annulment are met. For that reason, asking the court for annulment should only be done with representation by an experienced family law attorney.

Differences Between Annulment and Divorce in North Carolina

Annulment and divorce have significantly different legal effects. If a judge grants an annulment, the marriage is invalid. The effect is that for legal purposes, the marriage never occurred or existed.

In contrast, a divorce terminates but does not invalidate a marriage. Following divorce, the marriage still existed legally for the period of time preceding the granting of the divorce.

Another substantial difference between divorce and annulment is that alimony, spousal support, and equitable distribution of property, which a court determines in a divorce proceeding, generally are not available when a court grants an annulment. However, in an annulment action, the judge has authority to award a financial payment of post-separation support and attorney’s fees from one spouse to the other.

Children Born During a Void or Voidable Marriage

The law contains an important provision regarding children born during a void or voidable marriage: A child born during a voidable or bigamous marriage is legitimate in North Carolina, even if a court annuls the marriage. In other words, the annulment does not affect parental rights and obligations, including the requirement of child support.

Deciding Between Annulment and Divorce in North Carolina

Annulment is available in North Carolina under very limited circumstances. However, there are situations in which it applies. Determining whether your marriage qualifies under state law requires a legal assessment by an attorney. It is not a judgment you should attempt to make on your own without talking to a lawyer.

If you are in circumstances where you think you may qualify for an annulment, you should talk with a knowledgeable North Carolina family law attorney. Your lawyer will learn all about your situation, explain the laws and court procedures, and help you determine the best way to proceed.

Talk With a Trusted North Carolina Annulment Attorney

Our domestic and family law attorneys at The Twiford Law Firm are here to help with legal matters relating to North Carolina marriage laws, including annulment and divorce. With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina, including the Outer Banks. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.