Whether someone qualifies for Marriage Annulment in North Carolina is a frequent question I receive, and a frequent source of confusion. The issue of annulment comes up most frequently when people have been married only a very short period of time and therefore they think that they would qualify for an annulment in North Carolina rather than have to wait out the one year separation period to get a divorce in North Carolina. To most people, an annulment is just an easier and quicker way to end a marriage than to have to go through the stigma and stress of getting divorced.
The purpose of this article is to dispel some of the myths about marriage annulment in North Carolina and give some instances when an annulment would and would not be appropriate. Before I go any further, however, you should know that most attorneys (myself included) will go their entire careers without ever handling an annulment case. The fact is that very few cases actually qualify for an annulment in North Carolina.
Myths regarding marriage annulment in North Carolina
There are two big myths that I frequently get asked about when a potential client is interested in getting an annulment:
- I’ve only been married a week, can I get an annulment?
- I never had sex with my husband/wife since we married, can I get an annulment?
The answer to both of these questions is a resounding “No”. (However, there can be exceptions to number 2 when one party is impotent). Unfortunately, if you got married, moved in with someone, and then found out about all their nasty secrets that they kept hidden while you were dating and engaged, it doesn’t qualify you for an annulment. (A divorce from bed and board may be a possibility, however.)
Under what circumstances am I eligible for a Marriage Annulment in North Carolina?
Whether or not you are eligible for a marriage annulment in North Carolina is going to be governed by statute and case-law. There are only a few isolated instances when an annulment is allowed under North Carolina Law.
Getting Married to a family member
If you marry someone who is “nearer in kin than first cousins, or between double first cousins” then you may qualify for an annulment in North Carolina. So no, you can’t marry your cousin – in North Carolina anyway. Marrying a parent, sibling, or other close relative is also a bad idea and would be grounds for an annulment.
If you or your spouse was under the age of 16
Although for most legal purposes, you must be at least 18 to be considered an adult. However, if you are 16, you can get married. If either you or your spouse was under 16 when you got married, then you would qualify for an annulment.
If either you or your spouse is married at the time of the second marriage
You can only be married to one person at one time. To get married a second time while you are still married to your first spouse is considered a “bigamous marriage” and is illegal. If you marry someone and find out that they are still married to their first spouse, you would qualify for an annulment in North Carolina.
If one of you is impotent
You may be eligible for an annulment if you or your spouse was impotent when you got married. However, you would need to have this condition diagnosed by a medical doctor.
Lack of Mental Capacity to get married
If a party to the marriage is “at the time incapable of contracting from want of will or understanding” than the marriage may be subject to annulment. A person can lack mental capacity if at the time of marriage they are unable to understand the “special nature of a contract of marriage, and the duties and responsibilities which it entails.” This could happen when someone is so intoxicated or mentally retarded that they are incapable of understanding what they did.
False representation – i.e. “baby on the way”
This one only applies to men. If your wife lied to you about being pregnant, and you relied on that false representation in getting married to her, than you may qualify for an annulment. However, to get the annulment, you must separate within 45 days after the marriage and remain separated for one full year before applying for the annulment. However, if a child is born to your wife within 10 months after the date of separation, then you would not qualify for an annulment – but you may qualify for an absolute divorce.
What is the effect of an annulment in North Carolina?
If you obtain an annulment, you marriage is “voided”. In other words, it’s as if it never happened. Your slate is wiped clean, so to say. A voidable marriage is different from a “void” marriage. The only instance in which your marriage is void is in the case of the bigamous marriage which was described above. If you enter into a bigamous marriage, you don’t technically need to get annulled, although it may be a good idea – just to save you heartache and potential confusion from a future spouse later on.
What do I do if I think I qualify for a marriage annulment in North Carolina?
The first think you should do is contact a divorce lawyer in your county to determine whether or not your interpretation of the law is correct. As I mentioned before, most divorce lawyers go their entire career without filing an annulment for a client – but it does happen from time to time.
If you live in Wake County, you may contact our Cary office at (919) 460-5422 to schedule a consultation, or fill out our online contact form and a representative of our office will be in touch.