The State of North Carolina holds the bonds of matrimony in very high regard and as such provides few options for breaking these bonds. If you are married and wish to end your marriage, your only two options are the following: seek an annulment or file for divorce.
Annulment is an action available for parties to defective marriages. Defective marriages are those considered legally void or voidable. Your marriage is only legally void or voidable, or able to be cancelled, in a few circumstances. If your marriage does not fall into one of these two categories: void or voidable, the only way to legally end your marriage is through divorce.
In North Carolina, the only marriage considered void, or not having existed at all, is a bigamous marriage where two marriages exist with the same person. A void marriage can be argued by one of the parties or by a third party, even after death. Between the two marriages, the presumption in North Carolina is that the first is valid and the second one is not. Any person in North Carolina who, while married, marries another person while their first spouse is still living, is subject to being charged with a felony. Anyone who assists another person with said marriage can also be charged with a felony. Whether a marriage is void based on bigamy, or voidable and subsequently annuled, a child born of such marriages is legitimate in the eyes of the law.
A voidable marriage is treated as a valid marriage unless or until the marriage is annulled. A voidable marriage can only be attacked by or on behalf of a party to the marriage. In some cases, if age or capacity of a party to the marriage raises issue, only the party who is sought to be protected (the under aged or insufficient capacity) may argue that the marriage is invalid. An exception to this rule is that a parent can annul the marriage of their child who is under the age of 18 if the marriage license was procured by fraud.
Void marriages, can never be made valid; for example a man marries a woman while still married to different woman, the second marriage is still invalid even if he eventually divorces the woman from his first marriage. Conversely, a voidable marriage can be ratified once the impediment is removed. For example if the grounds were that one of the parties was too young but now they are of age to marry.
Grounds under which marriages are voidable include circumstances where the parties marrying are too closely related; either party is under the age of 16 years old; either party is physically impotent at the marriage ceremony – examples of impotent being: if they are intoxicated, under duress, under undue influence; if either party is incapable of contracting at the marriage ceremony; if the female party to the marriage represents to be pregnant, the parties separate within 45 days of marriage, separation is continuous for 1 year, and no child is born within 10 months of separation.
The effects of annulment include the following: the marriage is set aside as if it never existed; post separation support (or temporary alimony) is available but permanent alimony is not; children remain legitimate even if their parents’ marriage is annulled; child support can be awarded; no equitable distribution is permitted because the property is treated as if the parties were never married.
If you believe that you your marriage would qualify to be annulled given the circumstances as described above it is important to consult with an experienced family law attorney. At Arnold & Smith, PLLC we have attorneys that are Board Certified Family Law Specialists that can apply their wealth of knowledge and experience to your circumstance to help you get the best resolution possible. Contact us today at 704-370-2828 or click here for more articles and videos about other family law related topics.