Author: Stephen Corby
Perhaps the most famous case of annulment was when Britney Spears married a childhood friend in Vegas that lasted for fifty-five hours. The media made it seem like the annulment was an easy process, and maybe it was, but the process in North Carolina is quite different.
There are many instances when those in unhappy marriages explore the option of annulment rather than divorce. However, North Carolina law provides very few situations in which a marriage may be annulled. Each state has different laws regarding annulment. Some states offer a multitude of grounds for annulling the marriage, while others keep the list fairly short. The goal of this article is to explain when one may obtain an annulment in North Carolina.
What is the difference between an annulment and a divorce?
First, let’s explain the difference between an annulment and a divorce. Unlike divorce, an annulment treats the marriage as if it never existed. In other words, annulment renders the marriage void from the very beginning and a divorce terminates the marriage on the date the court enters the judgment. Additionally, annulment and divorce have extremely different legal consequences. A divorce focuses on the future marital status of the parties and seeks to equally divide property obtained during the marriage. An annulment differs in that it changes the parties’ past and present marital status by declaring that what appeared to be a valid marriage at its beginning is actually no longer a marriage at all or ever was. Divorce proceedings are usually initiated because of what happened after the marriage, while an annulment is sought based on something that existed at the time of the marriage.
What are the grounds for annulment in North Carolina?
As stated earlier, there are few grounds for an annulment in North Carolina. North Carolina courts have recognized the following grounds for annulment:
Being underage without proper authorization
Incompetence or insanity
This article will explain each of the grounds for annulment in detail. The North Carolina statute that governs annulments is N.C.G.S. § 50-4.
Bigamy occurs when a person gets married while legally married to another individual. Basically, it is when one is married to two people at the same time. Bigamy can also be a criminal offense if committed on purpose. Most states, including North Carolina, recognize bigamy as a ground for annulment because a person who is already married is incapable of marrying another. Therefore, the second marriage is void and thus, not a marriage at all. When it comes to annulment, the North Carolina legislature makes an important distinction between a “void” marriage and a “voidable” marriage. A “voidable” marriage is valid until the court annuls it, but a void marriage is never valid. The only type of void marriage in North Carolina is a bigamous marriage.
If you find yourself in a situation that might constitute a bigamous marriage, and you believe that the second marriage is valid, check for a death certificate of the first spouse or find a copy of a valid divorce judgment to prove that the prior marriage has been dissolved. It is usually a good idea to wait at least 10 days after getting a divorce before remarrying because each party has 10 days to appeal the divorce. In most situations, a person enters into a bigamous marriage without knowing. Usually they thought that all the required divorce paperwork for the first marriage was filled out properly and it so happens that it was not.
Incest occurs when there is a sexual relationship between family members or close relatives, including children related by adoption. Incest is a ground for annulment when two individuals marry and they are nearer of kin than first cousins. The most common situation of incest is when double first cousins marry. Double first cousins are the children of two siblings in one family who reproduce with two siblings of another family. Therefore, a marriage between double first cousins is incest and a ground of annulment in North Carolina. Interestingly enough, North Carolina does allow first cousins to marry and the marriage may not be annulled on the grounds of incest.
Impotency is a fancy way of saying “erectile dysfunction” and occurs when a man is unable to achieve an erection and have sex. However, impotency also applies to the female equivalent of erectile dysfunction but North Carolina case law is silent on that unique situation. Impotency is a ground for annulment because in essence, the husband cannot “consummate” the marriage or in other words, cannot make the marriage complete by having sex. Although impotency applies to both the husband and wife, it is unclear how a husband would be able to prove that his wife is impotent. With respect to the husband, impotency may be proven by the testimony of either the husband or wife, as long as the condition existed at the time of marriage. Additionally, unlike most other states, there is no requirement in North Carolina that a party’s impotency be incurable. Therefore, even if the husband is able to fix his erectile function disorder, the wife may still annul the marriage.
Lack of Capacity to Marry
The law generally views marriage as a contract between two people. If one of the parties, or both, is not able to understand what it means to be married, an annulment may be granted. The inability to understand the concept of marriage must have existed at the actual time of marriage in order to obtain an annulment on these grounds. An example of incapacity occurs when the marriage was entered into while extremely intoxicated. However, the intoxication must be so severe that the intoxicated party is incapable of consenting to the marriage.
Additionally, an annulment may be granted on the grounds of age. To obtain an annulment on this ground, one of the spouses must have been less than 16 years of age at the time of the marriage. It is important to note that only the underage party may ask for an annulment on these grounds. If the underage party lives with their spouse until they turn 16, they may no longer seek an annulment based on age.
A person may seek an annulment on the basis of fraud but it is extremely difficult. In order to obtain an annulment on this ground, the defrauded party must prove that the fraud existed before the marriage, during the marriage, and lasted throughout the entirety of the marriage. A spouse must show that there was an intentional misrepresentation of highly important facts by the party committing the fraud and that the mispresentations caused them to agree to be married. Courts are very hesitant to grant an annulment on the basis of fraud unless the defrauded party can show that the only reason they got married is because of the fraud. Annulments based on fraud are determined on a case-by-case basis because the facts and evidence must be very specific.
Fraud, with respect to annulment, is different from fraud occurring in contracts. Not every kind and degree of fraud can be the basis of an annulment, especially when the marriage has been fully consummated (the spouses have sex) and the spouses have assumed all the rights and duties of the relationship.
North Carolina has annulled marriages based on fraud in the following situations: When one of the parties expressed their ability or willingness to have children and then the innocent spouse later learned that their spouse could not have children and he/she knew that when they were married; when the marriage is entered into on the belief that the female is pregnant and the parties later separate no later than 45 days, continue the separation for a year, and no child is born within 10 months; when one of the parties failed to mention to their future wife/husband that they had the intention never having sex after the marriage; if the marriage was entered into by a non-United States citizen for the purpose of gaining entry into American and when the non-citizen has no intention of living as husband and wife; concealment of sexual orientation. Since there are many different scenarios to obtain an annulment on the basis of fraud, it is important to contact an attorney to find out if your situation qualifies as fraud.
A marriage entered into while one of the parties was under duress may be annulled. Duress is different from fraud because it occurs when a party uses threats, violence, or other actions to make an unwillingly person do what they want them to do. If an individual is married without his or her free will, the marriage can be annulled. The most common situation in which duress can annul a marriage is when, as a result of premarital sex, the woman alleges pregnancy, and the father or other relative of the woman involved attempt to persuade EITHER the man or woman to the marry in order to legitimize the baby. A marriage will not be annulled on the ground that the marriage was entered into by the man because of threats of prosecution, arrest, or imprisonment.
The best course of action to take if you would like to obtain an annulment is to contact an attorney. The Law Offices of Stephen M. Corby can advise you of the relevant laws and case law in North Carolina, and assist you with your annulment. If you cannot obtain an annulment on one of the grounds listed above, you must live separate and apart for at least a year and a half before getting a divorce. Please read the next article to learn about defenses to annulment and situations that bar a married couple from obtaining an annulment.