Am I Eligible for an Annulment?
I Want an Annulment
Annulment is a topic of great discussion amongst those in unhappy marriages. Some people imagine that annulment is a shortcut to a faster divorce. Others believe that an annulment carries less of the baggage that some associate with a divorce. We have prepared this short article on annulment so that you will have a better understanding of when and how annulments take place in North Carolina.
What is an annulment?
North Carolina law allows for only a few circumstances in order to annul a marriage. An annulment means that the marriage is voided, or in other words, once the District Court orders an annulment, it is as if the marriage never existed.
For a marriage to be voided via an annulment, a District Court Judge must issue a court order. An annulment changes a person’s status such that it is as if that person were never married. Therefore, there are only a few circumstances under which a marriage will be annulled or voided. An annulled marriage is voided, which, confusingly enough, is not the same as a void marriage. We discuss void marriages later in this article.
Am I eligible for an annulment, and what circumstances would make my marriage voidable?
To begin, let’s start with what does NOT make one eligible for an annulment and a few common misconceptions regarding the basis for annulment.
In North Carolina, grounds for annulment are limited, and many people incorrectly assume certain circumstances will qualify them. Oftentimes, people believe that the length of a marriage will qualify them for an annulment, but this is not the case. In fact, the length of a marriage is irrelevant in terms of the ability to later annul a marriage. Whether you have been married for one week or twenty years, you only qualify for an annulment if you meet the criteria outlined by the North Carolina Statutes and listed here:
1. Marriages between family members:
A marriage between any two people “nearer in relationship than first cousins” is one circumstance under which an annulment would be granted in North Carolina. For example, if two first cousins, a parent and child, or two siblings got married, they would be eligible for an annulment.
2. If one of the parties is underage:
In most cases, a marriage between a male or female under the age of 16 and a member of the opposite sex would be eligible to be annulled, unless there is a court order as a result of a pregnancy of someone between the ages of 14 and 16. Also, when one of the parties is under the age of 16, the marriage is no longer eligible to be annulled or voided when the girl is pregnant or when a child has been born to the couple, unless the child is dead at the time of the action to annul or unless one of the parties is declared incompetent at the time of the marriage.
3. If one of the parties is impotent:
Another reason an annulment might be granted is if either party is physically impotent at the time of the marriage, and that impotence is medically diagnosed by a doctor.
4. If one of the parties lacks the mental capacity to understand what marriage entails:
In certain circumstances, a person is determined to lack the mental capacity to understand the “special nature of a contract of marriage, and the duties and responsibilities which it entails.” This situation may lead to an annulment. It is important to realize that it is the mental capacity of the person at the time of the marriage, not later on in the marriage or prior to the marriage. Determination of one’s mental capacity is handled on a case-by-case basis.
5. If one of the parties commits to marriage under a false pretense, such as a baby on the way:
Another circumstance under which a marriage is eligible to be annulled is if the marriage was contracted under the “representation and belief” that the female partner to the marriage is pregnant, unless a child has been born to the parties within 10 lunar months of the date of separation, if the parties separate within 45 days of the marriage and separation has been continuous for a period of one year.
No marriage that has been followed by cohabitation (living together as a married couple) and the birth of a child, except for a bigamous one, can be annulled or voided, once one of the parties is deceased.
How do I get an annulment? Where do I go?
District Courts are often also referred to as trial courts. They are divided into four categories: civil, criminal, juvenile, and magistrate. Most family law matters are handled by the civil part of the District Court in North Carolina. There is a District Court in each county, and you should contact the Clerk of Court in your county for further assistance in filing for an annulment.
There are, of course, always specific circumstances to be considered, and if you have more questions about whether you are eligible for an annulment, you may want to set up a consultation with a family law attorney to discuss the details of your situation and get a better understanding of your options.
What is a void marriage? And how is it different?
We mentioned earlier in this article that a voidable marriage is different from a void marriage. While a voidable marriage requires you to obtain an annulment to end the marriage, a void marriage does not. In the case of a void marriage, you do not have to go through the District Court to get a court order, because a void marriage was never a valid marriage to begin with. Often, this is described as void ab netio, a latin term which means void from the inception.
The only marriage in North Carolina that is considered automatically void by operation of law is a bigamous marriage, which is a marriage entered into by someone who is already married. Since the law dictates that a person may only be married to one spouse at a time, a second or subsequent marriage is not recognized and is automatically invalid in North Carolina.
Therefore, in this case – and in this case only – is a marriage automatically void. One does not need an annulment in the case of a void marriage; however, it may be good practice to get one anyway, so as to avoid any confusion later on in life, both legally and personally. For any issues that may come up from the bigamous marriage, such as property division, or for any issues that may arise when trying to marry later in life, it is a good precaution to have the marriage acknowledged as void by the court.
In all other cases, when a marriage is referred to as “voidable,” it is not automatically void. It may be voided, but only by a court order.