Annulment is a way to end a marriage without having to wait the one-year separation period associated with divorce in North Carolina. An annulment renders a marriage as though it never existed in the first place. Therefore, a successful annulment means that the other party can’t sue you for equitable distribution or alimony. However, there are very few ways to qualify for an annulment. At Garrett, Walker, Aycoth & Olson, Attorneys at Law, our family lawyers understand that in order to get an annulment, the circumstances surrounding your marriage must fall into one of the following categories:
If one of the parties had been previously married, and that marriage was not dissolved by death or divorce prior to the subsequent marriage, then the parties qualify for an annulment. Legally, the subsequent marriage is void, meaning that the marriage never existed in the first place. Even though the marriage legally never existed, often a judgment of a court is needed in order to clarify the status of the marriage for North Carolina vital records and other institutions. It is also worth noting that, while rarely prosecuted, bigamy is a class I felony in North Carolina (only for the person who had both marriages), so be aware that admitting to bigamy in a pleading or open court could have further criminal consequences.
False or Fake Pregnancy
If a marriage takes place under the belief that the female is pregnant, and no baby is born within 10 lunar months of the date of separation, then an annulment can be granted. One further requirement of this category is that the parties must separate within forty-five days of marriage. This type of marriage is voidable, meaning that it will be a legally valid marriage until the time that a judgement grants the annulment.
A marriage is voidable if there was not proper solemnization under North Carolina law. North Carolina statute requires that a marriage must take place (1) in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and (2) with the declaration by the minister or magistrate that the two are married, OR in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe. If you had a traditional marriage with an ordained minister or were married by a magistrate at the courthouse, then it is likely your marriage met these solemnization requirements. On the other hand, if you were married by a friend, family member, or stranger who is not ordained, you might have a case for annulling your marriage.
Incestuous, Underage, Incompetent, and Impotent
The other categories are relatively simple and are as follows:
(1) Marriages between relatives closer than first cousins are voidable.
(2) Marriages between someone under 16 and any other person is also voidable, UNLESS one of the two parties is pregnant, or a living child has been born to the parties. Additionally, a marriage otherwise voidable on these grounds can be ratified by subsequent conduct of the parties.
(3) If a person lacks the mental capacity to contract at the time of the marriage, then that marriage can be voided. This means that the person entering into the marriage must understand the special nature of the contract of marriage and the duties and responsibilities that follow from it. It also means that the marriage wasn’t entered into by one party’s ‘undue influence’ over another.
(4) Finally, a marriage is voidable if one of the parties is physically impotent at the time of the marriage.
If your marriage falls under one of the above categories, you could be eligible for an annulment. An annulment requires specific elements to be met and proven and requires a hearing before a judge. If you wish to speak with a family law attorney about an annulment, call Garrett, Walker, Aycoth & Olson, Attorneys at Law.