GSNC

ARTICLE 1. General Provisions.

Sec.

§ 51-1. Requisites of marriage; solemnization.

A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

1. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and (1) a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
2. With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

Marriages solemnized before March 9, 1909, by ministers of the gospel licensed, but not ordained, are validated from their consummation.

History

(1871-2, c. 193, s. 3; Code, s. 1812; Rev., s. 2081; 1908, c. 47; 1909, c. 704, s. 2; c. 897; C.S., s. 2493; 1945, c. 839; 1965, c. 152; 1971, c. 1185, s. 26; 1977, c. 592, s. 1; 2000-58, ss. 1, 2; 2001-14, ss. 1, 2; 2001-62, ss. 1, 17; 2002-115, ss. 5, 6; 2002-159, s. 13(a); 2003-4, s. 1; 2005-56, s. 1; 2007-61, s. 1; 2009-13, s. 1; 2012-194, s. 65.4(a).)

Local Modification. - Bertie: 1951, c. 852; town of Sparta: 1969, c. 1020.

Cross References. - As to divorce and alimony, see Chapter 50.

As to powers and liabilities of married persons, see G.S. 52-1 et seq.

Editor's Note. - Session Laws 1998-120, s. 2, amended this section to add "district court judge or" before "magistrate" and Session Laws 1998-120, s. 3, provides: "Section 2 of this act shall apply only to district court judges, who were formerly assistant district attorneys of the Thirteenth Judicial District, and shall expire on July 31, 1999."

Session Laws 2001-62, s. 16, provides: "The Administrative Office of the Courts shall develop any and all forms necessary for carrying out the purpose of this act and distribute them to the Office of the Clerk of Superior Court in each county."

Session Laws 2002-115, s. 5, effective November 25, 2002, and expiring December 1, 2002, inserted "a resident superior court judge, or an emergency superior court judge of this State" following "minister authorized by a church" in subdivision (1)a; and substituted "declaration by the minister, judge" for "declaration by the minister" in subdivision (1)b.

Session Laws 2002-115, s. 6, effective September 19, 2002, and expiring September 22, 2002, inserted "district court judge" following "minister authorized by a church" in subdivision (1)a; and substituted "declaration by the minister, judge" for "declaration by such minister" in subdivision (1)b.

Session Laws 2002-159, s. 13(b), provides: "Any marriage solemnized on or after October 1, 2001, and before the effective date of this act [approved October 11, 2002] and otherwise valid is not invalid because the minister or magistrate failed to declare the persons husband and wife."

Session Laws 2003-4, s. 1, effective March 28, 2003, and expiring March 31, 2003, in subdivision (1)a, inserted "a district court judge of this State" following "church"; and in (1)b, substituted "minister, judge," for "minister" following "declaration by the."

Session Laws 2005-56, s. 1, effective June 23, 2005, and expiring June 27, 2005, in subdivision (1)a, inserted "a district court judge of this State or of another state" following "authorized by a church"; and in (1)b, substituted "minister, district court judge," for "minister" following "consequent declaration by the."

Session Laws 2007-61, s. 1, effective June 4, 2007, and expiring June 8, 2007, inserted "district court judge of this State" following "church" in subdivision (1)a. and inserted "district court judge of this State" following "minister" in subdivision (1)b.

Session Laws 2009-13, s. 1, effective April 8, 2009, and expiring April 15, 2009, inserted "judge of the superior court" following "minister authorized by a church" in subdivision (1)a., and following "minister" in subdivision (1)b.

Session Laws 2012-194, s. 65.4(a), which was effective July 26, 2012, and expired July 30, 2012, inserted "judge of the superior court" following "minister authorized by a church" in subdivision (1)a., and following "minister" in subdivision (1)b.

Session Laws 2016-61, s. 2, is effective July 2, 2016, and expires July 5, 2016, and provides: "(a) Notwithstanding the limitations in G.S. 51-1(1) and (2), a marriage that meets all other requisites of marriage may be solemnized by a Justice of the United States Supreme Court or a Judge of the United States Court of Appeals."

Legal Periodicals. - For article on common-law marriage in North Carolina, see 16 N.C.L. Rev. 259 (1938).

For comment on the enforceability of marital contracts, see 47 N.C.L. Rev. 815 (1969).

For article, "An Evolutionary Consideration of the Marriage Formalities of Licensure and Solemnization in Contemporary English and North Carolinian Statutory Law," see 10 N.C. Cent. L.J. 1 (1978).

For note on constitutional law and an illegitimate child's paternal inheritance rights, see 16 Wake Forest L. Rev. 205 (1980).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For comment, "Avoiding Wonderland: Clarifying Marriage Requirements in North Carolina," see 35 Campbell L. Rev. 227 (2013).

For article, "Polygamous Marriage, Monogamous Divorce," see 67 Duke L.J. 79 (2017).

For article, "Consent to Intimate Regulation," see 96 N.C.L. Rev. 1013 (2018).

For article, "Beyond the Marriage Tax Trilemma,” see 54 Wake Forest L. Rev. 661 (2019).

For article, "Adultery, Infidelity, and Consensual Non-Monogamy," see 55 Wake Forest L. Rev. 147 (2020).

CASE NOTES

As to history of marriage laws, see State v. Bray, 35 N.C. 289 (1852); State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890); State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897).

There is no such thing as marriage simply by consent in this State. State v. Samuel, 19 N.C. 177 (1836); State v. Patterson, 24 N.C. 346 (1842); State v. Bray, 35 N.C. 289 (1852); Cooke v. Cooke, 61 N.C. 583 (1868); State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890); State v. Melton, 120 N.C. 591, 26 S.E. 933 (1897); State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897); State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979); State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980), decided prior to the amendment by Session Laws 2001-62, s. 1

Essentials of This Section Must Be Followed. - While consent is essential to marriage in this State, it is not the only essential, but it must be acknowledged in the manner and before some person prescribed by this section. State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897); State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980), decided prior to the amendment by Session Laws 2001-62, s. 1

Requirements of Statute. - Intent of the person performing the ceremony is not a relevant factor in determining whether a valid marriage has resulted; there is nothing in the statute requiring that a valid marriage ceremony is contingent upon the persons being married understanding or agreeing with all the legal consequences of that marriage. In re Estate of Peacock, 248 N.C. App. 18, 788 S.E.2d 191 (2016), review denied, 793 S.E.2d 227, 2016 N.C. LEXIS 850 (2016).

When Marriage Is Complete. - Marriage is in law complete when parties able to contract and willing to contract have actually contracted to be man and wife, in the forms and with the solemnities required by law. Consummation by carnal knowledge is not necessary to its validity. State v. Patterson, 24 N.C. 346 (1842).

A valid marriage must be solemnized in the presence of one of three persons: (1) an ordained minister of any religious denomination; (2) a minister authorized by his church; or (3) a magistrate.rev'd on other grounds State v. Lynch, 46 N.C. App. 608, 265 S.E.2d 491; 301 N.C. 479, 272 S.E.2d 349 (1980), decided prior to the amendment by Session Laws 2001-62, s. 1

Instructions Defining "Church" and "Religious Denomination" Properly Refused. - In a bigamy prosecution in which the crucial determination was whether the person before whom a purported prior marriage of defendant was solemnized was an ordained minister of any religious denomination or a minister authorized by his church, the determination of whether there was a church or a religious denomination was not for the jury, since it was a matter of ecclesiastical law, and the trial court properly refused to give defendant's requested instructions defining "church" and "religious denomination." State v. Lynch, 46 N.C. App. 608, 265 S.E.2d 491, rev'd on other grounds, 301 N.C. 479, 272 S.E.2d 349 (1980).

Mail-Order Minister Not Qualified to Perform Valid Ceremony. - A ceremony solemnized by a Roman Catholic layman in the mail order business, who bought for $10.00 a mail order certificate giving him "credentials of minister" in the Universal Life Church, Inc., was not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in this State. State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980). But see G.S. 51-1.1

Husband showed a "minister" ordained by the Universal Life Church was unauthorized to perform a marriage ceremony, under G.S. 51-1, because the parties stipulated the relevant facts were the same as in a North Carolina Supreme Court decision negating such a person's authority. Duncan v. Duncan, 232 N.C. App. 369, 754 S.E.2d 451 (2014).

For case in which church elder was held an ordained minister, authorized to celebrate the rites of matrimony, see State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890).

Impersonation of Minister. - A private citizen who impersonates an ordained minister and, with the consent of the parties, solemnizes a marriage between a man and woman is not guilty of any criminal offense known to the common or statute law. State v. Brown, 119 N.C. 825, 25 S.E. 820 (1896).

Evidence of Marriage by Justice of Peace. - It is sufficient evidence of a marriage that it was solemnized by one in the known enjoyment of the office of justice of the peace, and acting as such. His commission need not be produced. State v. Robbins, 28 N.C. 23, 44 Am. Dec. 64 (1845).

Marriage by Unqualified Celebrant Was Voidable. - Wife's marriage to her first husband under Islamic law was voidable because they did not have a marriage license and the ceremony failed to meet statutory requirements, but the wife never terminated the marriage. The marriage was still valid when she married her second husband; therefore, the second marriage was bigamous and void. Mussa v. Palmer-Mussa, 217 N.C. App. 339, 719 S.E.2d 192 (2011).

A marriage procured by force or fraud is void ab initio, and may be treated as null by every court in which its validity may be incidentally drawn in question. Scroggins v. Scroggins, 14 N.C. 535 (1832).

But a marriage contracted while under arrest for seduction is not contracted under duress. State v. Davis, 79 N.C. 603 (1878).

Ceremony Requirements Satisfied. - Ceremony complied with the statute because it was conducted in the presence of a minister authorized to perform marriages, that minister declared that the decedent and the wife were husband and wife, and they seriously and freely expressed their desire to become husband and wife; the reverend's intent to perform a "religious ceremony" but not a "legal ceremony" did not affect the outcome. In re Estate of Peacock, 248 N.C. App. 18, 788 S.E.2d 191 (2016), review denied, 793 S.E.2d 227, 2016 N.C. LEXIS 850 (2016).

Sham Marriage a Nullity. - A marriage pretendedly celebrated before an unauthorized person is a nullity and not capable of being legalized by consent. State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897).

Indian Custom Held Not a Valid Marriage. - There is but one law of marriage for all the residents of this State. Hence cohabitation between an Indian man and woman according to the customs of their tribe, by which the parties were at liberty to dissolve the connection at pleasure, did not constitute a marriage. State v. Ta-cha-na-tah, 64 N.C. 614 (1870), decided prior to the amendment by Session Laws 2001-62, s. 1

Legislature May Dispense With Formality. - The substance of marriage, the consent of the parties, existing, it was as clearly within the power of the legislature to dispense with any particular formality as it was to prescribe such. State v. Whitford, 86 N.C. 636 (1882).

Validation by Retroactive Legislation. - It is competent for the legislature by retrospective legislation to give validity to a marriage which is invalid by reason of the nonobservance of some solemnity required by statute. It is otherwise where such marriage is a nullity. Cooke v. Cooke, 61 N.C. 583 (1868).

Wife Need Not Use Husband's Surname. - There is no statutory requirement in this State that a married woman use her husband's surname. In re Mohlman, 26 N.C. App. 220, 216 S.E.2d 147 (1975).

Marriage is Not Invalid Because Solemnized Under an Illegal License. - Trial court erred in affirming the decision of the assistant clerk of court, who ruled a decedent's heirs were his children, and a ceremony did not make the decedent's wife an heir because the ceremony complied with the statutory requirements and, thus, the decedent and the wife were married; the fact that the ceremony was conducted without a license could not serve to invalidate an otherwise properly performed ceremony because a marriage license was not a prerequisite to a valid marriage. In re Estate of Peacock, 248 N.C. App. 18, 788 S.E.2d 191 (2016), review denied, 793 S.E.2d 227, 2016 N.C. LEXIS 850 (2016).

Annulment Complaint Dismissed. - Dismissal of husband's annulment complaint was affirmed because appellate court was bound by trial court's uncontested finding that the person who conducted the wife's prior marriage ceremony was unauthorized to do so under former G.S. 51-1; from this, it followed that the husband failed to show that his marriage was bigamous. When the existence of a second marriage was established, it was presumed valid until the "attacking party" showed that it was invalid, and the presumption favoring the continuation of a prior marriage, if applicable, yielded to the presumption favoring a second marriage. Mussa v. Palmer-Mussa, 366 N.C. 185, 731 S.E.2d 404 (2012).

Applied in State v. Woodruff, 99 N.C. App. 107, 392 S.E.2d 434 (1990).

Cited in Western Conference of Original Free Will Baptists v. Creech, 256 N.C. 128, 123 S.E.2d 619 (1962); In re Linville, - Bankr. - (Bankr. M.D.N.C. Feb. 1, 2005); Thigpen v. Cooper, 225 N.C. App. 798, 739 S.E.2d 165 (2013).

§ 51-1.1. Certain marriages performed by ministers of Universal Life Church validated.

Any marriages performed by ministers of the Universal Life Church prior to July 3, 1981, are validated, unless they have been invalidated by a court of competent jurisdiction, provided that all other requirements of law have been met and the marriages would have been valid if performed by an official authorized by law to perform wedding ceremonies.

History

(1981, c. 797.)

CASE NOTES

Section Inapplicable. - It was error to conclude that G.S. 51.1, validating marriages performed by ministers of the Universal Life Church performed before July 3, 1981, validated a marriage performed after that date because the statute did not validate later marriages. Duncan v. Duncan, 232 N.C. App. 369, 754 S.E.2d 451 (2014).

Where marriage was never invalidated, this section applied to validate it. The net effect of this section was to render the marriage valid from its inception, as it was voidable, rather than void. Fulton v. Vickery, 73 N.C. App. 382, 326 S.E.2d 354, cert. denied, 313 N.C. 599, 332 S.E.2d 178 (1985).

§ 51-1.2. (See Editor's note) Marriages between persons of the same gender not valid.

Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.

History

(1995 (Reg. Sess., 1996), c. 588, s. 1.)

Editor's Note. - In Obergefell v. Hodges , 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (2015), the United States Supreme Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex licensed and performed out-of-state. For prior Fourth Circuit case law on this issue, see Bostic v. Schaefer , 760 F.3d 352 (4th Cir. 2014), cert. denied, 2014 U.S. LEXIS 6405 (2014), invalidating the Commonwealth of Virginia's ban on same-sex marriage on due process and equal protection grounds.

Legal Periodicals. - For article, "Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage," see 75 N.C.L. Rev. 1501 (1997).

For comment, "Out of Step: Why Pulliam v. Smith Should Be Overruled to Hold All North Carolina Parents - Gay and Straight - to the Same Custody Standard," see 87 N.C.L. Rev. 257 (2008).

For article, "The Equal Access Act Requires Equal Access for All: Why the Rowan-Salisbury School System's Policy Against 'Sex-Based' Clubs, Developed to Ban Gay-Straight Alliances, Is Illegal," see 33 N.C. Cent. L. Rev. 137 (2011).

For article, "'Deja Vu All Over Again': The Recourse to Biology by Opponents of Transgender Equality," see 95 N.C.L. Rev. 1161 (2017).

For article, "Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims,” see 68 Duke L.J. Online 149 (2019).

Opinions of Attorney General

Penalties for Issuance of Marriage Licenses to Individuals of Same Gender. - A register of deeds would violate North Carolina law in issuing a marriage license to persons of the same gender and if, in issuing such a license, the register of deeds operates in bad faith he may subject himself to the penalties provided in G.S. 161-27. See opinion of Attorney General to Mr. Willie L. Covington, Register of Deeds, Durham County Courthouse, 2004 N.C.A.G. 2 (3/29/04).

§ 51-2. Lawful age to marry.

All unmarried persons of 18 years, or older, may lawfully marry.
Persons over 16 years of age and under 18 years of age may marry a person no more than four years older, and the register of deeds may issue a license for the marriage, only after there has been filed with the register of deeds a certified copy of an order issued by a district court authorizing the marriage as provided in G.S. 51-2.1, or a written consent to the marriage, said consent having been signed by the appropriate person as follows:
1. By a parent having full or joint legal custody of the underage party; or
2. By a person, agency, or institution having legal custody or serving as a guardian of the underage party.
Repealed by Session Laws 2021-119, s. 1, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.
It shall be unlawful for any person under 16 years of age to marry.
When a license to marry is procured by any person under 18 years of age by fraud or misrepresentation, a parent of the underage party, a person, agency, or institution having legal custody or serving as a guardian of the underage party, or a guardian ad litem appointed to represent the underage party pursuant to G.S. 51-2.1(b) is a proper party to bring an action to annul the marriage.

Such written consent shall not be required for an emancipated minor if a certificate of emancipation issued pursuant to Article 35 of Chapter 7B of the General Statutes or a certified copy of a final decree or certificate of emancipation from this or any other jurisdiction is filed with the register of deeds.

History

(R.C., c. 68, s. 14; 1871-2, c. 193; Code, s. 1809; Rev., s. 2082; C.S., s. 2494; 1923, c. 75; 1933, c. 269, s. 1; 1939, c. 375; 1947, c. 383, s. 2; 1961, c. 186; 1967, c. 957, s. 1; 1969, c. 982; 1985, c. 608; 1998-202, s. 13(s); 2001-62, s. 2; 2001-487, s. 60; 2021-119, s. 1.)

Cross References. - As to declaration of certain marriages as void on application of either party, see G.S. 50-4.

Editor's Note. - Session Laws 2001-62, s. 16, provides: "The Administrative Office of the Courts shall develop any and all forms necessary for carrying out the purpose of this act and distribute them to the Office of the Clerk of Superior Court in each county."

Session Laws 2021-119, s. 4, made the amendments to this section by Session Laws 2021-119, s. 1, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.

Effect of Amendments. - Session Laws 2021-119, s. 1, substituted "Lawful age” for "Capacity” in the section head; substituted "marry, except as hereinafter forbidden” for "marry” in subsection (a); rewrote the introductory language in subsection (a1); deleted former subsection (b), which read: "Persons over 14 years of age and under 16 years of age may marry as provided in G.S. 51 2.1”; and substituted "16” for "14” in subsection (b1). For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on the 1923 amendment, see 1 N.C.L. Rev. 295 (1923).

As to annulment under the 1939 amendment, see 17 N.C.L. Rev. 353 (1939).

For comment on the 1947 amendment, see 25 N.C.L. Rev. 414 (1947).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

CASE NOTES

Effect of Lack of Parental Consent and Special License. - The marriage of a female between the ages of 14 and 16 (now between 16 and 18) without the written consent of her parent and without the special license required by this section, is not void but voidable. Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929).

Applied in State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914 (2005), review denied, 362 N.C. 240, 660 S.E.2d 488 (2008).

Cited in Gastonia Personnel Corp. v. Rogers, 276 N.C. 279, 172 S.E.2d 19 (1970).

Opinions of Attorney General

Effective Date of 2001 Amendment. - A pregnant female who is less than 14 and who obtained a marriage license before October 1, 2001, may not lawfully marry after that date. See opinion of Attorney General to Ann Shaw, Randolph County Register of Deeds, 2001 N.C. AG LEXIS 36 (10/9/01).

Written Consent for Marriage of Person Who Is over 16 Years of Age and Under 18 Years of Age. - When a 14/15 year old is marrying a 16/17 year old, the register of deeds must require a court order from the 14/15 year old and the appropriate written consent from the 16/17 year old. See opinion of Attorney General to Ann Shaw, Randolph County Register of Deeds, 2001 N.C. AG LEXIS 36 (10/9/01).

§ 51-2.1. Marriage of certain underage parties.

A district court judge may issue an order authorizing a marriage between a person over 16 years of age and under 18 years of age, to a person no more than four years older under this section only upon finding as fact and concluding as a matter of law that the underage party is capable of assuming the responsibilities of marriage and the marriage will serve the best interest of the underage party. In determining whether the marriage will serve the best interest of an underage party, the district court shall consider the following:
1. The opinion of the parents of the underage party as to whether the marriage serves the best interest of the underage party.
2. The opinion of any person, agency, or institution having legal custody or serving as a guardian of the underage party as to whether the marriage serves the best interest of the underage party.
3. The opinion of the guardian ad litem appointed to represent the best interest of the underage party pursuant to G.S. 51-2.1(b) as to whether the marriage serves the best interest of the underage party.
4. The relationship between the underage party and the parents of the underage party, as well as the relationship between the underage party and any person having legal custody or serving as a guardian of the underage party.
5. Any evidence that it would find useful in making its determination.
An underage party seeking an order granting judicial authorization to marry pursuant to this section shall file a civil action in the district court requesting judicial authorization to marry. The clerk shall collect court costs from the underage party in the amount set forth in G.S. 7A-305 for civil actions in district court. Upon the filing of the complaint, summons shall be issued in accordance with G.S. 1A-1, Rule 4, and the underage party shall be appointed a guardian ad litem in accordance with the provisions of G.S. 1A-1, Rule 17. The guardian ad litem appointed shall be an attorney and shall be governed by the provisions of subsection (d) of this section. The underage party shall serve a copy of the summons and complaint, in accordance with G.S. 1A-1, Rule 4, on the father of the underage party; the mother of the underage party; and any person, agency, or institution having legal custody or serving as a guardian of the underage party. The underage party also shall serve a copy of the complaint, either in accordance with G.S. 1A-1, Rule 4, or G.S. 1A-1, Rule 5, on the guardian ad litem appointed pursuant to this section. A party responding to the underage party's complaint shall serve his response within 30 days after service of the summons and complaint upon that person. The underage party may participate in the proceedings before the court on his or her own behalf. At the hearing conducted pursuant to this section, the court shall consider evidence, as provided in subsection (a) of this section, and shall make written findings of fact and conclusions of law.
Any party to a proceeding under this section may be represented by counsel, but no party is entitled to appointed counsel, except as provided in this section.
The guardian ad litem appointed pursuant to subsection (b) of this section shall represent the best interest of the underage party in all proceedings under this section and also has standing to institute an action under G.S. 51-2(c). The appointment shall terminate when the last judicial ruling rendering the authorization granted or denied is entered. Payment of the guardian ad litem shall be governed by G.S. 7A- 451(f). The guardian ad litem shall make an investigation to determine the facts, the needs of the underage party, the available resources within the family and community to meet those needs, the impact of the marriage on the underage party, and the ability of the underage party to assume the responsibilities of marriage; facilitate, when appropriate, the settlement of disputed issues; offer evidence and examine witnesses at the hearing; and protect and promote the best interest of the underage party. In fulfilling the guardian ad litem's duties, the guardian ad litem shall assess and consider the emotional development, maturity, intellect, and understanding of the underage party. The guardian ad litem has the authority to obtain any information or reports, whether or not confidential, that the guardian ad litem deems relevant to the case. No privilege other than attorney-client privilege may be invoked to prevent the guardian ad litem and the court from obtaining such information. The confidentiality of the information or reports shall be respected by the guardian ad litem, and no disclosure of any information or reports shall be made to anyone except by order of the court or unless otherwise provided by law.
If the last judicial ruling in this proceeding denies the underage party judicial authorization to marry, the underage party shall not seek the authorization of any court again under this section until after one year from the date of the entry of the last judicial ruling rendering the authorization denied.
Except as otherwise provided in this section, the rules of evidence in civil cases shall apply to proceedings under this section. All hearings pursuant to this section shall be recorded by stenographic notes or by electronic or mechanical means. Notwithstanding any other provision of law, no appeal of right lies from an order or judgment entered pursuant to this section.

There shall be a rebuttable presumption that the marriage will not serve the best interest of the underage party when all living parents of the underage party oppose the marriage. The fact that the female is pregnant, or has given birth to a child, alone does not establish that the best interest of the underage party will be served by the marriage.

History

(2001-62, s. 3; 2021-119, s. 2.)

The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 2001-62 having been G.S. 51-2A.

Session Laws 2021-119, s. 4, made the amendments to subsection (a) of this section by Session Laws 2021-119, s. 2, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.

Effect of Amendments. - Session Laws 2021-119, s. 2, rewrote the introductory language of subsection (a). For effective date and applicability, see editor's note.

Opinions of Attorney General

Court Order for Marriage of 14 or 15 Year Old. - When a 14/15 year old is marrying a 16/17 year old, the register of deeds must require a court order from the 14/15 year old and the appropriate written consent from the 16/17 year old. See opinion of Attorney General to Ann Shaw, Randolph County Register of Deeds, 2001 N.C. AG LEXIS 36 (10/9/01).

§ 51-2.2. Parent includes adoptive parent.

As used in this Article, the terms "parent", "father", or "mother" includes one who has become a parent, father, or mother, respectively, by adoption.

History

(2001-62, s. 4.)

The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 2001-62 having been G.S. 51-2B.

§ 51-3. Want of capacity; void and voidable marriages.

All marriages between any two persons nearer of kin than first cousins, or between double first cousins, or between a male person under 16 years of age and any female, or between a female person under 16 years of age and any male, or between persons either of whom has a husband or wife living at the time of such marriage, or between persons either of whom is at the time physically impotent, or between persons either of whom is at the time incapable of contracting from want of will or understanding, shall be void. No marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section except for bigamy. A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage which separation has been continuous for a period of one year, shall be voidable unless a child shall have been born to the parties within 10 lunar months of the date of separation.

History

(R.C., c. 68, ss. 7, 8, 9; 1871-2, c. 193, s. 2; Code, s. 1810; 1887, c. 245; Rev., s. 2083; 1911, c. 215, s. 2; 1913, c. 123; 1917, c. 135; C.S., s. 2495; 1947, c. 383, s. 3; 1949, c. 1022; 1953, c. 1105; 1961, c. 367; 1977, c. 107, s. 1; 2021-119, s. 3.)

Cross References. - As to penal provisions for incest, see G.S. 14-178.

As to penal provisions for bigamy, see G.S. 14-183.

As to suits to nullify marriages which were entered into contrary to the provisions of this section, see G.S. 50-4.

Editor's Note. - Session Laws 2021-119, s. 4, made the deletion of the former third sentence of this section by Session Laws 2021-119, s. 3, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.

Effect of Amendments. - Session Laws 2021-119, s. 3, deleted the former third sentence, which read: "No marriage by persons either of whom may be under 16 years of age, and otherwise competent to marry, shall be declared void when the girl shall be pregnant, or when a child shall have been born to the parties unless such child at the time of the action to annul shall be dead.” For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on the 1947 amendment, see 25 N.C.L. Rev. 414 (1947).

For comment on the 1949 amendment, see 27 N.C.L. Rev. 453 (1949).

For comment on the 1953 amendment, see 31 N.C.L. Rev. 412 (1953).

For comment, "Avoiding Wonderland: Clarifying Marriage Requirements in North Carolina," see 35 Campbell L. Rev. 227 (2013).

CASE NOTES

Power of Legislature to Remove Conditions. - The competency of the General Assembly to impose the restraints and conditions incident to the formation of the marriage relation and the contract which creates it implies the right to remove same. Baity v. Cranfill, 91 N.C. 293 (1884).

Void and Voidable Marriages Compared. - A voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

The marriage of a party under the minimum age required by statute is voidable and not void. Such marriage may be ratified by the subsequent conduct of the parties. Koonce v. Wallace, 52 N.C. 194 (1859); State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890); Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929); Parks v. Parks, 218 N.C. 245, 10 S.E.2d 807 (1940).

Although this section provides that all marriages "between a male person under 16 years of age and any female, or between a female person under 16 years of age and any male . . . shall be void," it is well established that such marriages are voidable rather than void. This was the rule of the common law. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

But May Be Ratified by Subsequent Conduct. - A marriage which is not void ab initio, but merely voidable, because one of the parties thereto was at its date under the age at which he or she might lawfully marry, may be ratified by the subsequent conduct of the parties in recognition of the marriage. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

Bigamous Marriages Are Void. - The fact that a presumption which has arisen of the death of a woman's husband shields her from prosecution for bigamy upon marrying another, does not render the last marriage any the less bigamous or void if the first husband is, in fact, alive. Ward v. Bailey, 118 N.C. 55, 23 S.E. 926 (1896).

Where a wife attempts to marry again when no valid divorce a vinculo has been obtained from her living husband, such second attempted marriage is absolutely void and may be annulled by the husband of the second attempted marriage in an action instituted for that purpose. Pridgen v. Pridgen, 203 N.C. 533, 166 S.E. 591 (1932).

A bigamous marriage is a nullity, with no legal rights flowing from it, and can be collaterally attacked at any time. Taylor v. Taylor, 321 N.C. 244, 362 S.E.2d 542 (1987).

Wife's marriage to her first husband under Islamic law was voidable because they did not have a marriage license and the ceremony failed to meet statutory requirements, but the wife never terminated the marriage. The marriage was still valid when she married her second husband; therefore, the second marriage was bigamous and void. Mussa v. Palmer-Mussa, 217 N.C. App. 339, 719 S.E.2d 192 (2011).

And Are Subject to Collateral Attack. - A marriage between parties, either of whom has a living spouse at the time of the purported marriage, is void ab initio and such a marriage being a nullity, it may be attacked collaterally at any time; no legal rights flow from it. Redfern v. Redfern, 49 N.C. App. 94, 270 S.E.2d 606 (1980).

But Second Marriage Is Presumed Valid. - When two marriages of the same person are shown and both parties to the first marriage are living at the time of the second marriage, the second marriage is presumed to be valid and the first marriage is presumed to have been dissolved by divorce. Parker v. Parker, 46 N.C. App. 254, 265 S.E.2d 237 (1980).

Wife who knowingly entered a bigamous marriage was subsequently estopped from asserting the invalidity of that marriage in order to avoid the consequences flowing from her wrongful conduct; therefore, the trial court correctly terminated husband's obligation to pay alimony under the separation agreement. Taylor v. Taylor, 321 N.C. 244, 362 S.E.2d 542 (1987).

Impotency Renders Marriage Voidable. - Impotency in a husband does not render a marriage by him void ab initio, but only voidable by sentence of separation, and until such sentence, it is deeded valid and subsisting. Smith v. Morehead, 59 N.C. 360 (1863).

Marriage of One Incapable of Contracting for Want of Understanding Is Voidable. - Under the common law as modified by this section and G.S. 50-4, a marriage of a person incapable of contracting for want of understanding is not void, but voidable. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Under the rule of the common law as modified by statute, the marriage of a person incapable of contracting for want of understanding is not void ipso facto, but if and when declared void in a legally constituted action, such marriage is void ab initio. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

What Constitutes Mental Capacity. - As to what constitutes mental capacity or incapacity to enter into a contract to marry, the general rule is that the test is the capacity of the person to understand 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. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Knowledge of the provisions of the statutory law relating to the revocation of a will by marriage and relating to the persons who shall succeed to the estate of an intestate is not a prerequisite or necessary element of mental capacity sufficient to contract a valid marriage. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

Test of Incompetency in Guardianship Matters Compared. - Tests judicially applied for a determination of incompetency in guardianship matters differ markedly from those applied for the determination of mental capacity to contract a marriage, for even though a person may be under guardianship as an incompetent, he may in fact have sufficient mental capacity to validly contract marriage. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Mental capacity of a party at the precise time when the marriage is celebrated controls its validity or invalidity. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Prior adjudication of incompetency is not conclusive on the issue of later capacity to marry and does not bar a party from entering into a contract to marry. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Burden of Persuasion as to Invalidity for Lack of Mental Capacity. - When the fact of marriage has been established by evidence, the burden of persuasion on the issue of invalidity is on the party asserting such. And even if a party's insanity is proved to be of such a chronic nature that it is presumed to continue, it does not shift the burden of the issue. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Undue Influence. - Where an executrix had filed a case on a decedent's behalf as his guardian ad litem, seeking an annulment of the decedent's marriage while the decedent was alive, and where substantial property rights hinged on the validity of the marriage, the action did not abate on the decedent's death and the executrix was entitled to pursue it; further, as there was no evidence showing the birth of issue into the union between the decedent and the wife, G.S. 51-3 did not preclude an annulment based on undue influence. Clark v. Foust-Graham, 171 N.C. App. 707, 615 S.E.2d 398 (2005), cert. denied, 362 N.C. 680, 670 S.E.2d 563 (2008).

Capacity to Marry as Affected by Guardianship. - Unlike other transactions, an insane person's capacity to marry is not necessarily affected by guardianship. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Certain Marriages Not Voidable After Death of Party. - As to provision that marriage followed by cohabitation and birth of issue shall not be declared void after death of either party except for bigamy, see Baity v. Cranfill, 91 N.C. 293 (1884); Ward v. Bailey, 118 N.C. 55, 23 S.E. 926 (1896); Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

Annulment decree rendered when children of the marriage are living is contrary to this section and improvidently entered. Scarboro v. Morgan, 233 N.C. 449, 64 S.E.2d 422 (1951).

Marriage Valid Where Celebrated Is Valid Here. - The marriage relation, if legally created elsewhere, is recognized as a valid subsisting relation when the parties come into this State from that of their former residence. Woodard v. Blue, 103 N.C. 109, 9 S.E. 492 (1889).

Attempt to Evade Provisions of Section. - The validity of a foreign marriage is not recognized here when parties having their domicile here, to evade our laws, go to a state which allows such marriage, with intent to return and keep up their domicile. Woodard v. Blue, 103 N.C. 109, 9 S.E. 492 (1889).

There is a difference between declaring a marriage valid and preventing one from asserting its invalidity. The theory behind the equitable estoppel doctrine is not to make legally valid a void divorce or to make an invalid marriage valid, but rather, to prevent one from disrupting family relations by allowing one to avoid obligations as a spouse. Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659, cert. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).

Equitable Estoppel to Attack Divorce. - Equitable estoppel is dependent upon events which led to the divorce or which may have occurred after the divorce. It is a personal disability of the party attacking the divorce judgment; it is not a function of the divorce decree itself. Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659, cert. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).

Husband who encouraged his wife to obtain a divorce from her prior spouse was estopped from questioning its validity. This problem most commonly arises when a man persuades a married woman to divorce her husband so that she will be free to marry him. When he does so, or even when he merely marries her with full knowledge of the circumstances surrounding the divorce, he is estopped to question the validity of the divorce, since he has engaged in conduct calculated to induce reliance on the divorce, and indeed, he has relied on it himself. Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659, cert. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).

Annulment Complaint Dismissed. - Dismissal of husband's annulment complaint was affirmed because appellate court was bound by trial court's uncontested finding that the person who conducted the wife's prior marriage ceremony was unauthorized to do so under former G.S. 51-1; from this, it followed that the husband failed to show that his marriage was bigamous. When the existence of a second marriage was established, it was presumed valid until the "attacking party" showed that it was invalid, and Ascertaining if the wife's purported prior marriage was void or voidable was irrelevant to determining if the husband had met his burden of proof. Mussa v. Palmer-Mussa, 366 N.C. 185, 731 S.E.2d 404 (2012).

Applied in Goins v. Trustees Indian Training School, 169 N.C. 736, 86 S.E. 629 (1915); Wiseman v. Wiseman, 68 N.C. App. 252, 314 S.E.2d 566 (1984); Heiser v. Heiser, 71 N.C. App. 223, 321 S.E.2d 479 (1984), cert. denied, 474 U.S. 824, 106 S. Ct. 80, 88 L. Ed. 2d 66 (1985); Hawkins v. Hawkins, 192 N.C. App. 248, 664 S.E.2d 616 (2008).

Cited in Chance v. Board of Educ., 224 F. Supp. 472 (E.D.N.C. 1963); Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F. Supp. 786 (W.D.N.C. 1970); Armstrong v. Armstrong, 41 N.C. App. 168, 254 S.E.2d 209 (1979); Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

§ 51-3.1. Interracial marriages validated.

All interracial marriages that were declared void by statute or a court of competent jurisdiction prior to March 24, 1977, are hereby validated. The parties to such interracial marriages are deemed to be lawfully married, provided that the provisions of this Chapter have been complied with.

History

(1977, c. 107, s. 2.)

§ 51-3.2. Marriage licensed and solemnized by a federally recognized Indian Nation or Tribe.

Subject to the restriction provided in subsection (b), a marriage between a man and a woman licensed and solemnized according to the law of a federally recognized Indian Nation or Tribe shall be valid and the parties to the marriage shall be lawfully married.
When the law of a federally recognized Indian Nation or Tribe allows persons to obtain a marriage license from the register of deeds and the parties to a marriage do so, Chapter 51 of the General Statutes shall apply and the marriage shall be valid only if the issuance of the license and the solemnization of the marriage is conducted in compliance with this Chapter.

History

(2001-62, s. 5.)

§ 51-4. Prohibited degrees of kinship.

When the degree of kinship is estimated with a view to ascertain the right of kinspeople to marry, the half-blood shall be counted as the whole-blood: Provided, that nothing herein contained shall be so construed as to invalidate any marriage heretofore contracted in case where by counting the half-blood as the whole-blood the persons contracting such marriage would be nearer of kin than first cousins; but in every such case the kinship shall be ascertained by counting relations of the half-blood as being only half so near kin as those of the same degree of the whole-blood.

History

(1879, c. 78; Code, s. 1811; Rev., s. 2084; C.S., s. 2496.)

§ 51-5. Marriages between slaves validated.

Persons, both or one of whom were formerly slaves, who have complied with the provisions of section five, Chapter 40, of the acts of the General Assembly, ratified March 10, 1866, shall be deemed to have been lawfully married.

History

(1866, c. 40, s. 5; Code, s. 1842; Rev., s. 2085; C.S., s. 2497.)

CASE NOTES

Section Is Valid. - As to the validity of this section, see Cooke v. Cooke, 61 N.C. 583 (1868); State v. Harris, 63 N.C. 1 (1868); State v. Adams, 65 N.C. 537 (1871); State v. Whitford, 86 N.C. 636 (1882); Long v. Barnes, 87 N.C. 329 (1882); Baity v. Cranfill, 91 N.C. 293 (1884).

For other cases decided under the statute, see Woodard v. Blue, 103 N.C. 109, 9 S.E. 492 (1889); State v. Melton, 120 N.C. 591, 26 S.E. 933 (1897); Bettis v. Avery, 140 N.C. 184, 52 S.E. 584 (1905).

Declarations as to Paternity. - Where a marriage was validated by this section, declarations as to the paternity of a child born subsequent to the marriage, made anti litem motam by the alleged father and mother, were admissible in evidence without regard to G.S. 49-12, which legitimates children born out of wedlock whose parents subsequently intermarry. Family tradition or pedigree is a recognized exception to the rule which generally excludes hearsay evidence. Bowman v. Howard, 182 N.C. 662, 110 S.E. 98 (1921).

§§ 51-5.1 through 51-5.4: Reserved for future codification purposs.

§ 51-5.5. Recusal of certain public officials.

Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based upon any sincerely held religious objection. Such recusal shall be upon notice to the chief district court judge and is in effect for at least six months from the time delivered to the chief district court judge. The recusing magistrate may not perform any marriage under this Chapter until the recusal is rescinded in writing. The chief district court judge shall ensure that all individuals issued a marriage license seeking to be married before a magistrate may marry.
Every assistant register of deeds and deputy register of deeds has the right to recuse from issuing all lawful marriage licenses under this Chapter based upon any sincerely held religious objection. Such recusal shall be upon notice to the register of deeds and is in effect for at least six months from the time delivered to the register of deeds. The recusing assistant or deputy register may not issue any marriage license until the recusal is rescinded in writing. The register of deeds shall ensure for all applicants for marriage licenses to be issued a license upon satisfaction of the requirements as set forth in Article 2 of this Chapter.
If, and only if, all magistrates in a jurisdiction have recused under subsection (a) of this section, the chief district court judge shall notify the Administrative Office of the Courts. The Administrative Office of the Courts shall ensure that a magistrate is available in that jurisdiction for performance of marriages for the times required under G.S. 7A-292(b). Only for the duration of the time the Administrative Office of the Courts has not designated a magistrate to perform marriages in that jurisdiction, the chief district court judge or such other district court judge as may be designated by the chief district court judge shall be deemed a magistrate for the purposes of performing marriages under this Chapter.
No magistrate, assistant register of deeds, or deputy register of deeds may be charged or convicted under G.S. 14-230 or G.S. 161-27, or subjected to a disciplinary action, due to a good-faith recusal under this section.

History

(2015-75, s. 1.)

ARTICLE 2. Marriage Licenses.

Sec.

§ 51-6. Solemnization without license unlawful.

No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant. There must be at least two witnesses to the marriage ceremony.

Whenever a man and woman have been lawfully married in accordance with the laws of the state in which the marriage ceremony took place, and said marriage was performed by a magistrate or some other civil official duly authorized to perform such ceremony, and the parties thereafter wish to confirm their marriage vows before an ordained minister or minister authorized by a church, or in a ceremony recognized by any religious denomination, federally or State recognized Indian Nation or Tribe, nothing herein shall be deemed to prohibit such confirmation ceremony; provided, however, that such confirmation ceremony shall not be deemed in law to be a marriage ceremony, such confirmation ceremony shall in no way affect the validity or invalidity of the prior marriage ceremony performed by a civil official, no license for such confirmation ceremony shall be issued by a register of deeds, and no record of such confirmation ceremony may be kept by a register of deeds.

History

(1871-2, c. 193, s. 4; Code, s. 1813; Rev., s. 2086; C.S., s. 2498; 1957, c. 1261; 1959, c. 338; 1967, c. 957, ss. 6, 9; 1977, c. 592, s. 2; 2001-62, s. 6.)

Legal Periodicals. - For article, "An Evolutionary Consideration of the Marriage Formalities of Licensure and Solemnization in Contemporary English and North Carolinian Statutory Law," see 10 N.C. Cent. L.J. 1 (1978).

For comment, "Avoiding Wonderland: Clarifying Marriage Requirements in North Carolina," see 35 Campbell L. Rev. 227 (2013).

CASE NOTES

Failure to procure a license will not invalidate a marriage otherwise good. State v. Robbins, 28 N.C. 23 (1845); State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890); Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893); Wooley v. Bruton, 184 N.C. 438, 114 S.E. 628 (1922).

A marriage is not invalid because solemnized under an illegal license. Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893); Wooley v. Bruton, 184 N.C. 438, 114 S.E. 628 (1922).

Trial court erred in affirming the decision of the assistant clerk of court, who ruled a decedent's heirs were his children, and a ceremony did not make the decedent's wife an heir because the ceremony complied with the statutory requirements and, thus, the decedent and the wife were married; the fact that the ceremony was conducted without a license could not serve to invalidate an otherwise properly performed ceremony because a marriage license was not a prerequisite to a valid marriage. In re Estate of Peacock, 248 N.C. App. 18, 788 S.E.2d 191 (2016), review denied, 793 S.E.2d 227, 2016 N.C. LEXIS 850 (2016).

Actual Delivery of License Required. - This section requires an actual delivery; constructive delivery will not suffice. So performance of the ceremony by a justice after a telephone communication informing him that the license had been mailed would subject him to the penalty prescribed by G.S. 51-7. Wooley v. Bruton, 184 N.C. 438, 114 S.E. 628 (1922).

Officer or Minister Penalized. - The only effect of marrying a couple without a legal license is to subject the officer or minister to the penalty of $200.00 prescribed by G.S. 51-7. State v. Robbins, 28 N.C. 23 (1845); State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890); Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893).

Cited in State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980); Thigpen v. Cooper, 225 N.C. App. 798, 739 S.E.2d 165 (2013).

§ 51-7. Penalty for solemnizing without license.

Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.

History

(R.C., c. 68, ss. 6, 13; 1871-2, c. 193, s. 8; Code, s. 1817; Rev., ss. 2087, 3372; C.S., s. 2499; 1953, c. 638, s. 1; 1967, c. 957, s. 5; 1993, c. 539, s. 415; 1994, Ex. Sess., c. 24, s. 14(c); 2001-62, s. 7.)

CASE NOTES

Marriage Not Affected. - Failure to comply with statutory requirements as to the license subjects the officer or minister to the penalty under this section, but the marriage is nevertheless good for every intent and purpose. State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890).

Statute of Limitations. - Where a summons was issued to recover the penalty against an officer, under this section, for performing marriage ceremony without the delivery of the license therefor to him, within less than a year from the time he had performed it, it was held that the plea of the statute of limitations, G.S. 1-54, subdivision (2), could not be sustained. Wooley v. Bruton, 184 N.C. 438, 114 S.E. 628 (1922).

Cited in In re Thomas, 290 N.C. 410, 226 S.E.2d 371 (1976); State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980); Thigpen v. Cooper, 225 N.C. App. 798, 739 S.E.2d 165 (2013).

§ 51-8. License issued by register of deeds.

Every register of deeds shall, upon proper application, issue a license for the marriage of any two persons who are able to answer the questions regarding age, marital status, and intention to marry, and, based on the answers, the register of deeds determines the persons are authorized to be married in accordance with the laws of this State. In making a determination as to whether or not the parties are authorized to be married under the laws of this State, the register of deeds may require the applicants for the license to marry to present certified copies of birth certificates or such other evidence as the register of deeds deems necessary to the determination. The register of deeds may administer an oath to any person presenting evidence relating to whether or not parties applying for a marriage license are eligible to be married pursuant to the laws of this State. Each applicant for a marriage license shall provide on the application the applicant's social security number. If an applicant does not have a social security number and is ineligible to obtain one, the applicant shall present a statement to that effect, sworn to or affirmed before an officer authorized to administer oaths. Upon presentation of a sworn or affirmed statement, the register of deeds shall issue the license, provided all other requirements are met, and retain the statement with the register's copy of the license. The register of deeds shall not issue a marriage license unless all of the requirements of this section have been met.
Expired.

History

(1871-2, c. 193, s. 5; Code, s. 1814; 1887, c. 331; Rev., s. 2088; C.S., s. 2500; 1957, c. 506, s. 1; 1967, c. 957, s. 2; 1997-433, s. 4.5; 1998-17, s. 1; 1999-375, s. 1; 2001-62, s. 8; 2002-159, s. 14; 2020-3, s. 4.13(a).)

Cross References. - For decisions relating to this section and G.S. 51-17, see note to G.S. 51-17.

Session Laws 2020-3, s. 4.13(c), made subsection (b), as added by Session Laws 2020-3, s. 4.13(a), effective May 4, 2020, and applicable to any marriage license issued on or after February 1, 2020, and provided further that the amendment expires August 1, 2020, and any marriage license issued on or before that date shall be valid for 120 days.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2020-3, s. 4.13(a), designated the previously existing provisions as subsection (a); and added subsection (b). For effective date, applicability, and expiration date, see editor's note.

CASE NOTES

This section and G.S. 51-17 are in pari materia and should be construed together. Bowles v. Cochran, 93 N.C. 398 (1885); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911).

Defense to Breach of Promise of Marriage. - The fact that at the time of the breach of promise of marriage, a license for the marriage of the parties could not have been lawfully issued under this section, was a defense to an action for damages for breach of promise of marriage. Winders v. Powers, 217 N.C. 580, 9 S.E.2d 131 (1940), decided under former former health certification requirement.

Effect of Noncompliance. - Failure to file a health certificate as required by former G.S. 51-14 did not invalidate an otherwise legal marriage, but such failure to comply with the statute in this respect did make the parties subject to indictment, and if they were convicted, to the penalty or penalties provided by this section. Hall v. Hall, 250 N.C. 275, 108 S.E.2d 487 (1959), decided under former former health certification requirement.

Cited in State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980).

Opinions of Attorney General

Aliens. - Where the register of deeds is satisfied that an applicant is an alien who has not come to the United States for the purpose of establishing a permanent residence or for the purpose of engaging in employment, and who otherwise meets the lawful requirements for a marriage license, the register of deeds should issue the license even though the alien is ineligible for a social security number. See opinion of Attorney General to The Honorable Katherine Lee Payne, Guilford County Register of Deeds, Guilford County Courthouse, 1998 N.C.A.G. 36 (8/14/98).

§ 51-8.1: Repealed by Session Laws 1967, c. 53.

§ 51-8.2. Issuance of marriage license when applicant is unable to appear.

If an applicant for a marriage license is over 18 years of age and is unable to appear in person at the register of deeds' office, the other party to the planned marriage must appear in person on behalf of the applicant and submit a sworn and notarized affidavit in lieu of the absent applicant's personal appearance.

The affidavit shall be in the following or some equivalent form:

________, [applicant] appearing before the undersigned notary and being duly sworn, says that: 1. I, ________, [applicant's name] am applying for a license in ________ County, North Carolina, to marry ________ [name of other applicant] in North Carolina within the next 60 days and I am authorized under G.S. 51-8.2 to complete this Affidavit in Lieu of Personal Appearance for Marriage License Application. I attach: (1) documentation that I am over 18 years of age as required in county of issuance; and (2) documentation of divorce as required by county of issuance. 2. I submit the following information in applying for a marriage license: Name: ___________________________________________________________________ First Middle Last Residence: ______________________________________________________________ State County City or Town ________________________________________________________________________ Street and Number Inside City Limits (Yes or No): _________________________________________ Birthplace: _____________________________________________________________ County & State or Country Birth Date: ____________________________ Age: ________ Father: _________________________________________________________________ Name State of Birth ________________________________________________________________________ Address (if living) or Deceased Mother: _________________________________________________________________ Name State of Birth ________________________________________________________________________ Address (if living) or Deceased Race (Optional): ________________________________________________________ Number of this marriage: 1st, 2nd, etc. _________________________________ Last Marriage Ended by: _________________________________________________ Death, Divorce, Annulment Date Marriage Ended: ____________________________________________________ Specify Highest Grade Completed in School (Optional): ___________________ Social Security # ____________________________ (If applicant does not have Social Security number, attach affidavit of ineligibility) I hereby make application to the Register of Deeds for a Marriage License and solemnly swear that all of the statements contained in the above application are true and I further make oath that there is no legal impediment to such marriage. ____________________________ Signature of Applicant Sworn to (or affirmed) and subscribed before me this ____ day of ________, ________. ________________________ [Seal] Notary Public My commission expires: ________ ____________________________________ [Notary's typed or printed name].

History

(2001-62, s. 9.)

§§ 51-9 through 51-11: Repealed by Session Laws 1994, c. 647, ss. 1-3.

§ 51-12: Repealed by Session Laws 1985, c. 589, s. 27.

§ 51-13: Repealed by Session Laws 1994, c. 647, s. 4.

Editor's Note. - The repealed section was amended by Session Laws 1993, c. 539, s. 416, as amended by Session Laws 1994, Extra Session, c. 24, s. 14(c), effective October 1, 1994. The section is set out above as repealed.

§ 51-14: Repealed by Session Laws 1967, c. 957, s. 3.

§ 51-15. Obtaining license by false representation misdemeanor.

If any person shall obtain, or aid and abet in obtaining, a marriage license by misrepresentation or false pretenses, that person shall be guilty of a Class 1 misdemeanor.

History

(1885, c. 346; Rev., s. 3371; C.S., s. 2501; 1967, c. 957, s. 4; 1993, c. 539, s. 417; 1994, Ex. Sess., c. 24, s. 14(c); 2001-62, s. 10.)

Cross References. - As to false pretenses generally, see G.S. 14-100 et seq.

§ 51-16. Form of license.

License shall be in the following or some equivalent form:

To any ordained minister of any religious denomination, minister authorized by a church, any magistrate, or any other person authorized to solemnize a marriage under the laws of this State: A.B. having applied to me for a license for the marriage of C.D. (the name of the man to be written in full) of (here state his residence), aged ________ years (race, as the case may be), the son of (here state the father and mother, if known; state whether they are living or dead, and their residence, if known; if any of these facts are not known, so state), and E.F. (write the name of the woman in full) of (here state her residence), aged ________ years (race, as the case may be), the daughter of (here state names and residences of the parents, if known, as is required above with respect to the man). (If either of the parties is under 18 years of age, the license shall here contain the following:) And the written consent of G.H., father (or mother, etc., as the case may be) to the proposed marriage having been filed with me, and there being no legal impediment to such marriage known to me, you are hereby authorized, at any time within 60 days from the date hereof, to celebrate the proposed marriage at any place within the State. You are required within 10 days after you shall have celebrated such marriage, to return this license to me at my office with your signature subscribed to the certificate under this license, and with the blanks therein filled according to the facts, under penalty of forfeiting two hundred dollars ($200.00) to the use of any person who shall sue for the same. Issued this ________ day of ________, ________ ________________________ L.M. Register of Deeds of ________ County Every register of deeds shall, at the request of an applicant, designate in a marriage license issued the race of the persons proposing to marry by inserting in the blank after the word "race" the words "white," "black," "African-American," "American Indian," "Alaska Native," "Asian Indian," "Chinese," "Filipino," "Japanese," "Korean," "Vietnamese," "Other Asian," "Native Hawaiian," "Guamarian," "Chamorro," "Samoan," "Other Pacific Islander," "Mexican," "Mexican-American," "Chicano," "Puerto Rican," "Cuban," "Other Spanish/Hispanic/Latino," or "other," as the case may be. The certificate shall be filled out and signed by the minister, officer, or other authorized individual celebrating the marriage, and also be signed by two witnesses present at the marriage, who shall add to their names their place of residence, as follows: I, N.O., an ordained or authorized minister or other authorized individual of (here state to what religious denomination, or magistrate, as the case may be), united in matrimony (here name the parties), the parties licensed above, on the ______ day of ____________, ______, at the house of P.R., in (here name the town, if any, the township and county), according to law. ______________ N.O.

Witness present at the marriage:

S.T., of (here give residence).

History

(1871-2, c. 193, s. 6; Code, s. 1815; 1899, c. 541, ss. 1, 2; Rev., s. 2089; 1909, c. 704, s. 3; 1917, c. 38; C.S., s. 2502; 1953, c. 638, s. 2; 1967, c. 957, s. 7; 1971, c. 1072; c. 1185, s. 27; 1999-456, s. 59; 2001-62, s. 11; 2020-3, s. 4.13(b).)

Local Modification. - Bladen: 1941, c. 95.

Session Laws 2020-3, s. 4.13(c), made the amendment to this section by Session Laws 2020-3, s. 4.13(b), effective May 4, 2020, and applicable to any marriage license issued on or after February 1, 2020, and provided further that the amendment expires August 1, 2020, and any marriage license issued on or before that date shall be valid for 120 days.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2020-3, s. 4.13(b), substituted "120 days" for "60 days" in the next-to-last sentence of the first paragraph. For effective date, applicability, and expiration date, see editor's note.

CASE NOTES

License Not Issued Until Filled Out. - A blank marriage license, though signed by the register of deeds, is not issued until it is filled out and handed to the person who is to be married, or to someone for him, and if at the time of such issuance the register has become functus officio, the failure to record it does not render him liable to the penalty imposed by G.S. 51-18 and G.S. 51-19 for failure to record the substance of each marriage license issued. Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893).

Cited in Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F. Supp. 786 (W.D.N.C. 1970).

§ 51-16.1. Form of license for Address Confidentiality Program participant.

If a person submits to the local register of deeds a current and valid Address Confidentiality Program authorization card issued pursuant to the provisions of Chapter 15C of the General Statutes, the local register of deeds shall use the substitute address designated by the Address Confidentiality Program when creating a new marriage license.

History

(2002-171, s. 3.)

§ 51-17. Penalty for issuing license unlawfully.

Every register of deeds who knowingly or without reasonable inquiry, personally or by deputy, issues a license for the marriage of any two persons to which there is any lawful impediment, or where either of the persons is under the age of 18 years, without the consent required by law, shall forfeit and pay two hundred dollars ($200.00) to any parent, guardian, or other person standing in loco parentis, who sues for the same: Provided, that requiring a party to a proposed marriage to present a certified copy of his or her birth certificate, or a certified copy of his or her birth record in the form of a birth registration card as provided in G.S. 130-102, in accordance with the provisions of G.S. 51-8, shall be considered a reasonable inquiry into the matter of the age of such party.

History

(R.C., c. 68, s. 13; 1871-2, c. 193, s. 7; Code, s. 1816; 1895, c. 387; 1901, c. 722; Rev., s. 2090; C.S., s. 2503; 1957, c. 506, s. 2.)

Editor's Note. - G.S. 130-102, referred to in this section, was repealed by Session Laws 1983, c. 891, s. 1, effective January 1, 1984. As to birth registration, see now G.S. 130A-101 et seq.

I. IN GENERAL.

Editor's Note. - G.S. 51-8 and this section have generally been construed together, as they relate to the same subject. Therefore, the cases decided under both sections have been treated in the note to this section.

Purpose. - The statute is a wise and beneficent one, the object being to prevent hasty and improvident marriages. Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911). See also Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

The statute is remedial in its nature. Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

This section and G.S. 51-8 are in pari materia and should be construed together. Bowles v. Cochran, 93 N.C. 398 (1885); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911); Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

Duties of Register Are Highly Important. - The duties of the register of deeds in issuing marriage licenses are most important and solemn. He must exercise them carefully and conscientiously, and not as a mere matter of form. Agent v. Willis, 124 N.C. 29, 32 S.E. 322 (1899); Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918).

Duties Cannot Be Delegated. - A register of deeds cannot delegate to another the duty of making the required reasonable inquiry into the legal competency of persons applying for a license to marry. Cole v. Laws, 108 N.C. 185, 12 S.E. 985 (1891).

Inquiry by Deputy Will Not Excuse Register. - If a party to a marriage is under the age authorized by law, the register cannot excuse himself from liability because his deputy or agent made proper inquiry, if he did not make the inquiry himself. The trust is personal to him. Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893).

Delivery of License to Third Party Prohibited. - The register is not authorized to permit the completed license to pass from the office and beyond his control into the hands of any applicant acting for a party to the proposed marriage. Coley v. Lewis, 91 N.C. 21 (1884).

Where the register delivered a license complete in form to one with instructions not to give it to the parties until the mother's consent in writing was given, and the license was never presented to the mother nor was her consent obtained, but the marriage ceremony was performed under it, it was held that the register was liable to the penalty. Coley v. Lewis, 91 N.C. 21 (1884).

"Reasonable Inquiry". - By reasonable inquiry is meant such inquiry as renders it probable that no impediment to the marriage exists. Bowles v. Cochran, 93 N.C. 398 (1885).

It would seem that "reasonable inquiry" involves at least an inquiry made of, or information furnished by, some person known to the register to be reliable, or, if unknown, identified and approved by some reliable person known to the register. This is the rule upon which banks act in paying checks, and surely in the matter of such grave importance as issuing a marriage license the register should not be excused upon a less degree of care. Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Furr v. Johnson, 140 N.C. 157, 52 S.E. 664 (1905); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911); Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

The requirement of reasonable inquiry is not merely a formal matter, which is met by taking the oaths of the husband or other parties unknown to the register, but it is expressive of a sound principle of public policy designed to protect immature persons from hasty and ill-advised marriages, made without the consent of their parents or guardians or those properly having the care over them. Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918).

Reasonable Inquiry Precludes Liability. - The register is not liable to the penalty when he has made reasonable inquiry and has been deceived, without laches on his part. Williams v. Hodges, 101 N.C. 300, 7 S.E. 786 (1888); Cole v. Laws, 104 N.C. 651, 10 S.E. 172 (1889); Agent v. Willis, 124 N.C. 29, 32 S.E. 322 (1899); Laney v. Mackey, 144 N.C. 630, 57 S.E. 386 (1907); Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

Examination under Oath Discretionary. - G.S. 51-8 does not require that the register shall make inquiry by examination of the applicant under oath, but merely declares that he shall have "the power to do so." His using, or failing to use, such discretionary power is merely a circumstance to be considered by the jury. Furr v. Johnson, 140 N.C. 157, 52 S.E. 664 (1905); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911).

Sworn Statements of Unknown Persons Insufficient. - It is not sufficient that the register takes the sworn statements of the parties or their friends not known to him. Snipes v. Wood, 179 N.C. 349, 102 S.E. 619 (1920).

Instances of Reasonable Inquiry. - When a reliable man of good character applied for a license, and produced to the register a written statement purporting to give to age of the female as over 18 years, and also the name and residence of the parents, and the person producing the statement said it was true, though no name was signed to it, it was held that the register had made such inquiry as was required of him, and was not liable for the penalty. Bowles v. Cochran, 93 N.C. 398 (1885).

For other cases where inquiry was held reasonable, see Walker v. Adams, 109 N.C. 481, 13 S.E. 907 (1891); Harcum v. Marsh, 130 N.C. 154, 41 S.E. 6 (1902).

Instances of Lack of Reasonable Inquiry. - When the register issued a license for the marriage of a woman under 18 years of age, without the assent of her parents, upon the application of one of whose general character for reliability he was ignorant, and who falsely stated the age of the woman, without making any further inquiry as to his sources of information, it was held that he had not made such reasonable inquiry into the facts as the law required, and he incurred the penalty for the neglect of his duty in that respect. Cole v. Laws, 104 N.C. 651, 10 S.E. 172 (1889).

To the same effect are the following cases: Williams v. Hodges, 101 N.C. 300, 7 S.E. 786 (1888); Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Morrison v. Teague, 143 N.C. 186, 55 S.E. 521 (1906); Laney v. Mackey, 144 N.C. 630, 57 S.E. 386 (1907); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911); Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918); Snipes v. Wood, 179 N.C. 349, 102 S.E. 619 (1920).

Written Consent Prerequisite to Issuance of Certain Licenses. - A register of deeds is not permitted to issue a marriage license where one of the parties is under 18 years of age, until the consent in writing of the person under whose charge he or she is shall be delivered to the register. The written consent is a condition precedent to the issuance of the license. Coley v. Lewis, 91 N.C. 21 (1884).

As to requirement under former law of consent of father, if living, see Littleton v. Haar, 158 N.C. 566, 74 S.E. 12 (1912); Owens v. Munden, 168 N.C. 266, 84 S.E. 257 (1915).

The word "father" used in the former statute did not include "stepfather," and the written consent of the mother, the father being dead, would authorize the issuing of the license. Owens v. Munden, 168 N.C. 266, 84 S.E. 257 (1915).

Violation of Section. - Issuance of a marriage license by a register of deeds in violation of the section is not an indictable offense, unless the illegal act is done mala fide. State v. Snuggs, 85 N.C. 541 (1881).

II. ACTION FOR PENALTY.

As to jurisdiction, see Joyner v. Roberts, 112 N.C. 111, 16 S.E. 917 (1893); Dixon v. Haar, 158 N.C. 341, 74 S.E. 1 (1912).

Venue. - An action for the penalty under this section should be tried in the county wherein the cause of action arises, and if brought in the wrong county, it should be removed and not dismissed. Dixon v. Haar, 158 N.C. 341, 74 S.E. 1 (1912).

Effect of Register's Death. - Under former G.S. 1-74, it was held that an action for a penalty against a register of deeds and the surety on his official bond abated on the death of the officer. Wallace v. McPherson, 139 N.C. 297, 51 S.E. 897 (1905). For present provisions as to abatement of actions, see G.S. 1A-1, Rule 25.

Allegations in Complaint. - In an action under this section, it is essential that the complaint should allege that the register issued the license knowingly or without reasonable inquiry. Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890 (1891).

Burden of Proof. - The burden of proof is upon the plaintiff to show that the officer issued the license when he knew of the impediment to the marriage, or that it was forbidden by the law, or when he had not made reasonable inquiry. Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Furr v. Johnson, 140 N.C. 157, 52 S.E. 664 (1905); Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911).

Presumption as to Time of Issuance. - The presumption is that a marriage license, signed by a register of deeds, was issued during his term of office. The burden of proving the contrary is on the party asserting it. Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893).

Evidence. - In a civil suit against a register, evidence of nolo contendere pleaded by the husband in a criminal action was not admissible. Snipes v. Wood, 179 N.C. 349, 102 S.E. 619 (1920).

Proof of the officer's failure to administer the oath to the applicant for the license is admissible to show a lack of reasonable inquiry. Laney v. Mackey, 144 N.C. 630, 57 S.E. 386 (1907).

The testimony of a witness as to the age of the woman, depending solely upon her statements to him which he repeated to the register when the license was applied for, was not substantive evidence of her age. Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911).

"Reasonable Inquiry" as Question of Law. - It is well-settled that the facts being admitted or found by the jury, the question as to what is "reasonable inquiry" is one of law for the court. Joyner v. Roberts, 114 N.C. 389, 19 S.E. 645 (1894); Trolinger v. Boroughs, 133 N.C. 312, 45 S.E. 662 (1903); Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918); Snipes v. Wood, 179 N.C. 349, 102 S.E. 619 (1920).

"Reasonable Inquiry" as Question for Jury. - Where there is a conflict of evidence, whether there has been "reasonable inquiry" is to be submitted to the jury upon all the evidence under proper instructions. Joyner v. Roberts, 114 N.C. 389, 19 S.E. 645 (1894); Harcum v. Marsh, 130 N.C. 154, 41 S.E. 6 (1902); Furr v. Johnson, 140 N.C. 157, 52 S.E. 664 (1905).

The fact that the register administered an oath to the applicant and his friend did not, of itself, exonerate him. He was permitted by the statute to do so, so that he might better elicit the facts, and his doing so or failing to do so would be but a circumstance for the jury to consider. Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917).

If the evidence is conflicting as to the reasonableness of the inquiry made by the register, the question should be submitted to the jury, and a judgment as of nonsuit thereon is erroneously entered. Lemmons v. Sigman, 181 N.C. 238, 106 S.E. 764 (1921).

Instructions. - If the facts are admitted, it is the duty of the court to instruct the jury whether they are sufficient to constitute "reasonable inquiry"; if they are in controversy, it is the duty of the court to instruct the jury that certain facts to be determined from the evidence do or do not constitute "reasonable inquiry." Spencer v. Saunders, 189 N.C. 183, 126 S.E. 420 (1925).

§ 51-18. Record of licenses and returns; originals filed.

The register of deeds shall maintain a separate index for marriage licenses and returns thereto. Each marriage license shall be indexed alphabetically according to the name of the proposed husband and proposed wife. Each index entry shall include, but not be limited to, the full name of the intended husband and wife, the date the marriage ceremony was performed, and the location of the original license and the return thereon. The original license and return shall be filed and preserved.

History

(1871-2, c. 193, s. 9; Code, s. 1818; 1899, c. 541, s. 3; Rev., s. 2091; C.S., s. 2504; 1963, c. 429; 1967, c. 957, s. 8; 1979, c. 636, s. 1; 1983, c. 699, s. 2.)

§ 51-18.1. Correction of errors in application or license; amendment of names in application or license.

When it shall appear to the register of deeds of any county in this State that information is incorrectly stated on an application for a marriage license, or upon a marriage license issued thereunder, or upon a return or certificate of an officiating officer, the register of deeds is authorized to correct such record or records upon being furnished with an affidavit signed by one or both of the applicants for the marriage license, accompanied by affidavits of at least two other persons who know the correct information.
When the name of a party to a marriage has been changed by court order as a result of a legitimation action or other cause of action, and the party whose name is changed presents a signed affidavit to the register of deeds indicating the name change and requesting that the application for a marriage license, the marriage license, and the marriage certificate of the officiating officer be amended by substituting the changed name for the original name, the register of deeds may amend the records as requested by the party, provided the other party named in the records consents to the amendment.

History

(1953, c. 797; 1959, c. 344; 1987, c. 576; 2001-62, s. 12.)

§ 51-19. Penalty for failure to record.

Any register of deeds who fails to record, in the manner above prescribed, the substance of any marriage license issued by him, or who fails to record, in the manner above prescribed, the substance of any return made thereon, within 10 days after such return made, shall forfeit and pay two hundred dollars ($200.00) to any person who sues for the same.

History

(1871-2, c. 193, s. 10; Code, s. 1819; Rev., s. 2092; C.S., s. 2505.)

CASE NOTES

Jurisdiction. - A plaintiff may unite several causes of action for several penalties against the same party, in the same complaint, and if the aggregate amount thereof exceeds the requisite amount, the superior court will have jurisdiction. Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890 (1891).

The penalty given by this section is in the alternative, either for failure to record the substance of the license issued or for failure to record the substance of the return. Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890 (1891).

Prosecution in Name of Person Suing for Penalty. - An action against a register of deeds to recover the penalties imposed for failure to comply with the provisions of the statute in relation to issuing marriage licenses under this section must be prosecuted in the name of the person who sues therefor, and not in the name of the State. Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890 (1891).

No Penalty for Not Recording Invalid License. - If the filling up and handing of the paper previously signed to the party proposing to be married was done not by the register but by an agent, and at the time the register was functus officio, the paper would be equally invalid because lacking the signature of a de facto register, and there could be no penalty for not recording it. Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919 (1893).

A statute relieving the register from the penalty imposed by this section, passed after an action was brought to recover the penalty, but before judgment, was held constitutional. Bray v. Williams, 137 N.C. 387, 49 S.E. 887 (1905).

§ 51-20: Repealed by Session Laws 1969, c. 80, s. 6.

§ 51-21. Issuance of delayed marriage certificates.

In all those cases where a minister or other person authorized by law to perform marriage ceremonies has failed to file his return thereof in the office of the register of deeds who issued the license for such marriage, the register of deeds of such county is authorized to issue a delayed marriage certificate upon being furnished with one or more of the following:

The affidavit of at least two witnesses to the marriage ceremony;
The affidavit of one or both parties to the marriage, accompanied by the affidavit of at least one witness to the marriage ceremony;
The affidavit of the minister or other person authorized by law who performed the marriage ceremony, accompanied by the affidavit of one or more witnesses to the ceremony or one of the parties thereto.
When proof as required by the three methods set forth in subdivisions (1), (2), and (3) above is not available with respect to any marriage alleged to have been performed prior to January 1, 1935, the register of deeds is authorized to accept the affidavit of any one of the persons named in subdivisions (1), (2), and (3) and in addition thereto such other proof in writing as he may deem sufficient to establish the marriage and any facts relating thereto; provided, however, that if the evidence offered under this paragraph is insufficient to convince the register of deeds that the marriage ceremony took place, or any of the pertinent facts relating thereto, the applicants may bring a special proceeding before the clerk of superior court of the county in which the purported marriage ceremony took place. The said clerk of the superior court is authorized to hear the evidence and make findings as to whether or not the purported ceremony took place and as to any pertinent facts relating thereto. If the clerk finds that the marriage did take place as alleged, he is to certify such findings to the register of deeds who is to then issue a delayed marriage certificate in accordance with the provisions of this section.

The certificate issued by the register of deeds under authority of this section shall contain the date of the delayed filing, the date the marriage ceremony was actually performed, and all such certificates issued pursuant to this section shall have the same evidentiary value as any other marriage certificates issued pursuant to law.

History

(1951, c. 1224; 1955, c. 246; 1967, c. 957, s. 10; 1969, c. 80, s. 12.)