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 N.C. LEXIS 41 (1852); State v. Parker, 106 N.C. 711 , 11 S.E. 517, 1890 N.C. LEXIS 373 (1890); State v. Wilson, 121 N.C. 650 , 28 S.E. 416, 1897 N.C. LEXIS 302 (1897).

There is no such thing as marriage simply by consent in this State. State v. Samuel, 19 N.C. 177 , 1836 N.C. LEXIS 60 (1836); State v. Patterson, 24 N.C. 346 , 1842 N.C. LEXIS 41 (1842); State v. Bray, 35 N.C. 289 , 1852 N.C. LEXIS 41 (1852); Cooke v. Cooke, 61 N.C. 583 , 1868 N.C. LEXIS 80 (1868); State v. Parker, 106 N.C. 711 , 11 S.E. 517, 1890 N.C. LEXIS 373 (1890); State v. Melton, 120 N.C. 591 , 26 S.E. 933, 1897 N.C. LEXIS 138 (1897); State v. Wilson, 121 N.C. 650 , 28 S.E. 416, 1897 N.C. LEXIS 302 (1897); State v. Alford, 298 N.C. 465 , 259 S.E.2d 242, 1979 N.C. LEXIS 1374 (1979); State v. Lynch, 301 N.C. 479 , 272 S.E.2d 349, 1980 N.C. LEXIS 1188 (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 N.C. LEXIS 302 (1897); State v. Lynch, 301 N.C. 479 , 272 S.E.2d 349, 1980 N.C. LEXIS 1188 (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 N.C. App. LEXIS 655 (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 N.C. LEXIS 41 (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. State v. Lynch, 46 N.C. App. 608, 265 S.E.2d 491, 1980 N.C. App. LEXIS 2873 , rev'd, 301 N.C. 479 , 272 S.E.2d 349, 1980 N.C. LEXIS 1188 (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, 1980 N.C. App. LEXIS 2873 , rev'd, 301 N.C. 479 , 272 S.E.2d 349, 1980 N.C. LEXIS 1188 (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 N.C. LEXIS 1188 (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 N.C. App. LEXIS 222 (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 N.C. LEXIS 373 (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 N.C. LEXIS 385 (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 , 1845 N.C. LEXIS 8 (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 N.C. App. LEXIS 2419 (2011), rev'd, 366 N.C. 185 , 731 S.E.2d 404, 2012 N.C. LEXIS 638 (2012).

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 N.C. LEXIS 97 (1832).

But a marriage contracted while under arrest for seduction is not contracted under duress. State v. Davis, 79 N.C. 603 , 1878 N.C. LEXIS 130 (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 N.C. App. LEXIS 655 (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 N.C. LEXIS 302 (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 N.C. LEXIS 199 (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 N.C. LEXIS 261 (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 N.C. LEXIS 80 (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 N.C. App. LEXIS 2012 (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 N.C. App. LEXIS 655 (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 N.C. LEXIS 638 (2012).

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 N.C. App. LEXIS 222 (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, 1985 N.C. App. LEXIS 3243 (1985).

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, “‘Déjá 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. Op. Att'y Gen. 2 (3/29/04).

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 N.C. LEXIS 78 (1929).

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).

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.”

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

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).

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.”

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

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 N.C. LEXIS 65 (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, 1984 N.C. App. LEXIS 2986 (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 N.C. LEXIS 65 (1859); State v. Parker, 106 N.C. 711 , 11 S.E. 517, 1890 N.C. LEXIS 373 (1890); Sawyer v. Slack, 196 N.C. 697 , 146 S.E. 864, 1929 N.C. LEXIS 78 (1929); Parks v. Parks, 218 N.C. 245 , 10 S.E.2d 807, 1940 N.C. LEXIS 130 (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 N.C. LEXIS 464 (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 N.C. LEXIS 464 (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 N.C. LEXIS 9 (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 N.C. LEXIS 32 (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 N.C. LEXIS 2551 (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 N.C. App. LEXIS 2419 (2011), rev'd, 366 N.C. 185 , 731 S.E.2d 404, 2012 N.C. LEXIS 638 (2012).

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 N.C. App. LEXIS 3334 (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 N.C. App. LEXIS 2832 (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 N.C. LEXIS 2551 (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 N.C. LEXIS 8 (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, 1984 N.C. App. LEXIS 2986 (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 N.C. LEXIS 464 (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, 1984 N.C. App. LEXIS 2986 (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 N.C. LEXIS 464 (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, 1984 N.C. App. LEXIS 2986 (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, 1984 N.C. App. LEXIS 2986 (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, 1984 N.C. App. LEXIS 2986 (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, 1984 N.C. App. LEXIS 2986 (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 N.C. App. LEXIS 1365 (2005), cert. denied, writ denied sub nom. Goodwin v. Smith, 362 N.C. 680 , 670 S.E.2d 563, 2008 N.C. LEXIS 1038 (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, 1984 N.C. App. LEXIS 2986 (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 N.C. LEXIS 65 (1884); Ward v. Bailey, 118 N.C. 55 , 23 S.E. 926, 1896 N.C. LEXIS 9 (1896); Ivery v. Ivery, 258 N.C. 721 , 129 S.E.2d 457, 1963 N.C. LEXIS 464 (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 N.C. LEXIS 317 (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 N.C. LEXIS 81 (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 N.C. LEXIS 81 (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, 1984 N.C. App. LEXIS 2937 (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, 1984 N.C. App. LEXIS 2937 (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, 1984 N.C. App. LEXIS 2937 (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 N.C. LEXIS 638 (2012).

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.”

CASE NOTES

Section Is Valid. —

As to the validity of this section, see Cooke v. Cooke, 61 N.C. 583 , 1868 N.C. LEXIS 80 (1868); State v. Harris, 63 N.C. 1 , 1868 N.C. LEXIS 85 (1868); State v. Adams, 65 N.C. 537 , 65 N.C. 538 , 1871 N.C. LEXIS 165 (1871); State v. Whitford, 86 N.C. 636 , 1882 N.C. LEXIS 261 (1882); Long v. Barnes, 87 N.C. 329 , 1887 N.C. LEXIS 373 (1887); Baity v. Cranfill, 91 N.C. 293 , 1884 N.C. LEXIS 65 (1884).

For other cases decided under the statute, see Woodard v. Blue, 103 N.C. 109 , 9 S.E. 492, 1889 N.C. LEXIS 81 (1889); State v. Melton, 120 N.C. 591 , 26 S.E. 933, 1897 N.C. LEXIS 138 (1897); Bettis v. Avery, 140 N.C. 184 , 52 S.E. 584, 1905 N.C. LEXIS 27 (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 N.C. LEXIS 294 (1921).

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.”

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 N.C. LEXIS 8 (1845); State v. Parker, 106 N.C. 711 , 11 S.E. 517, 1890 N.C. LEXIS 373 (1890); Maggett v. Roberts, 112 N.C. 71 , 16 S.E. 919, 1893 N.C. LEXIS 166 (1893); Wooley v. Bruton, 184 N.C. 438 , 114 S.E. 628, 1922 N.C. LEXIS 104 (1922).

A marriage is not invalid because solemnized under an illegal license. Maggett v. Roberts, 112 N.C. 71 , 16 S.E. 919, 1893 N.C. LEXIS 166 (1893); Wooley v. Bruton, 184 N.C. 438 , 114 S.E. 628, 1922 N.C. LEXIS 104 (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 N.C. App. LEXIS 655 (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 N.C. LEXIS 104 (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 N.C. LEXIS 8 (1845); State v. Parker, 106 N.C. 711 , 11 S.E. 517, 1890 N.C. LEXIS 373 (1890); Maggett v. Roberts, 112 N.C. 71 , 16 S.E. 919, 1893 N.C. LEXIS 166 (1893).

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.”

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 N.C. LEXIS 373 (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 N.C. LEXIS 104 (1922).

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 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 N.C. LEXIS 81 (1885); Joyner v. Harris, 157 N.C. 295 , 72 S.E. 970, 1911 N.C. LEXIS 46 (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 N.C. LEXIS 296 (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 N.C. LEXIS 646 (1959) (decided under former former health certification requirement).

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. Op. Att'y Gen. 36 (8/14/98).

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.”

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.

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.”

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 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 N.C. LEXIS 166 (1893).

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.

CASE NOTES

Analysis

• I. In General
• II. Action for Penalty

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.”

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 N.C. LEXIS 31 (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 N.C. LEXIS 31 (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 N.C. LEXIS 31 (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 N.C. LEXIS 166 (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 N.C. LEXIS 181 (1905).