In North Carolina, as in many other jurisdictions, there is a distinction between void and voidable marriages. A void marriage is considered legally invalid from its inception. This means you and your partner were never legally married, despite believing you were. The key characteristic of a void marriage is that it is invalid regardless of any subsequent legal action to attempt to validate the marriage. Meaning, that even once you find out that you were never lawfully married, you will never be able to marry this person for some reason that is invalid under the law. In North Carolina, there are several situations where this comes up, including:
- Bigamy: Where one or both parties to a marriage are already married to someone else at the time of the marriage, making the subsequent marriage void.
- Consanguinity: When the parties are closely related by blood, such as siblings or relatives, the marriage is void.
- Incest: If the parties are engaged in a marriage that is considered incestuous under North Carolina law, the marriage is void. In North Carolina a person commits incest if they engage in “carnal intercourse with the person’s (i) grandparent or grandchild, (ii) parent or child or stepchild or legally adopted child, (iii) brother or sister of the half or whole blood, or (iv) uncle, aunt, nephew, or niece.”
- Mental Incapacity: If one or both parties lack the mental capacity to consent to the marriage due to mental illness, mental disability, or intoxication, the marriage may be void. The general rule when determining whether someone has the mental capacity to enter a marriage is that the person understands “the special nature of the contract of marriage and the duties and responsibilities which it entails, which is to be determined from the facts and circumstances of each case.”
A voidable marriage is initially considered valid and legally binding. However, it is subject to being declared invalid by a court if one of the parties seeks an annulment. An annulment is a legal proceeding that essentially cancels a marriage. A voidable marriage will remain valid until it is challenged and annulled by a court. In North Carolina, there are several situations where this comes up, including:
- Fraud or Misrepresentation: If one party deceives the other about a significant aspect of the marriage, such as concealing impotence, a criminal record, or an intention to have children, the deceived party may seek an annulment.
- Duress or Coercion: If one party was forced or threatened into the marriage, it may be voidable.
- Underage Marriage: if one or both parties are underage at the time of the marriage and do not have proper parental or court consent, the marriage may be voidable.
It is important to keep in mind that the specific laws and procedures regarding void and voidable marriages can vary by jurisdiction. Therefore, if you are seeking legal advice as to whether your marriage is void or voidable, it is recommended that you consult with a family law attorney. If you believe your marriage may be void or voidable, then let’s talk about it. Call King Law today at 888-748-KING (5464) to schedule an appointment.