§ 52-1. Property of married persons secured.

The real and personal property of any married person in this State, acquired before marriage or to which he or she may after marriage become in any manner entitled, shall be and remain the sole and separate estate and property of such married person and may be devised and conveyed by such married person subject to G.S. 50-20 and such other regulations and limitations as the General Assembly may prescribe.

History. Const., Art. X, s. 6; Rev., s. 2093; C.S., s. 2506; 1965, c. 878, s. 1; 1981, c. 815, s. 3; 2011-284, s. 52.

Cross References.

For constitutional provision as to property of married women, see N.C. Const., Art. X, § 4.

As to conveyances by husband and wife, see G.S. 39-7 et seq.

As to contracts of married persons, see G.S. 52-2 .

Editor’s Note.

Session Laws 1965, c. 878, s. 1, repealed and rewrote Chapter 52 of the General Statutes. Where present provisions are similar to prior statutory provisions, the historical citations from the former sections have been added to the new sections. Former G.S. 52-1 applied to married women only.

Annotations to present Chapter 52 construing provisions of the former Chapter have been retained where it is thought they will be helpful.

Effect of Amendments.

Session Laws 2011-284, s. 52, effective June 24, 2011, deleted “bequeathed” following “devised.”

Legal Periodicals.

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

For comment on the tax effects of equitable distribution upon divorce, see 18 Wake Forest L. Rev. 555 (1982).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under former statutory provisions relating to the property of married women.

History. —

For a discussion of the history of this legislation and of many of the earlier cases construing it, see Ball v. Paquin, 140 N.C. 83 , 52 S.E. 410, 1905 N.C. LEXIS 12 (1905).

Common Law. —

At common law, marriage was an absolute gift to the husband of all the personal property of the wife in possession, and the same became his property instantly on the marriage; and it was a qualified gift of all the personal property adversely held, and all the choses in action of the wife, which became the husband’s absolutely upon his reduction of the same into possession, during coverture, with the right in case the wife died to administer on her estate, and in that character to collect, and after payment of her debts to hold the surplus to his own use, without obligation to distribute to anyone. O'Connor v. Harris, 81 N.C. 279 , 1879 N.C. LEXIS 177 (1879).

At common law it was competent to the husband having choses in action “jure mariti” to assign the same for value, or as a security to pay his debts, and the assignment availed to pass the right to the assignee to collect and have the proceeds as his absolute property, if collected during coverture, just as the husband might have done if he had kept and reduced it into possession himself. O'Connor v. Harris, 81 N.C. 279 , 1879 N.C. LEXIS 177 (1879).

The legislature may abolish all the incapacities of married women, and give them full power to contract as femes sole. Pippen v. Wesson, 74 N.C. 437 , 1876 N.C. LEXIS 115 (1876).

Chapter Abridges Common-Law Rights of Husband. —

The provisions of this Chapter, insofar as the husband is concerned, constitute in the main abridgements of rights he had as to his wife’s property under the common law, and do not purport to create in him, as against her, rights he did not have at common law. Scholtens v. Scholtens, 230 N.C. 149 , 52 S.E.2d 350, 1949 N.C. LEXIS 590 (1949).

Section Applies to Property Not Secured to Wife by Act of Parties. —

This section does not apply to cases where the property is secured to the wife by marriage settlement or deed of gift or will. The property is thereby secured to her by act of the parties. The object of the section is to secure the property to the wife by act of law when it has not been done by act of the parties, who may make restrictions and limitations over. Cooper v. Landis, 75 N.C. 526 , 1876 N.C. LEXIS 337 (1876).

Vested Rights Protected. —

Where a husband’s right to receive and appropriate to his own use his wife’s distributive share in her mother’s estate was vested under the law then in force, no subsequent legislation could deprive him of it without his consent. Morris v. Morris, 94 N.C. 613 , 1886 N.C. LEXIS 113 (1886).

Husband Without Vested Interest in Wife’s Real Property. —

The real property of the wife, whether acquired before or after marriage, remains her sole and separate property under N.C. Const., Art. X, § 4, and therein the husband has no vested interest. Vann v. Edwards, 135 N.C. 661 , 47 S.E. 784, 1904 N.C. LEXIS 79 (1904); Kilpatrick v. Kilpatrick, 176 N.C. 182 , 96 S.E. 988, 1918 N.C. LEXIS 212 (1918).

Wife May Hold Legal as Well as Equitable Estate. —

Since the adoption of the Constitution of 1868, a married woman has or can have the legal as well as the equitable estate. Sanderlin v. Sanderlin, 122 N.C. 1 , 29 S.E. 55, 1898 N.C. LEXIS 183 (1898).

Prior to the adoption of the Constitution of 1868 it was held that deeds by which property was conveyed to a trustee for the sole and separate use of a married woman created an active trust in the trustee, and this was held because otherwise the statute would execute the use, and the husband would, as husband, become vested with rights in and control over his wife’s property. But by the Constitution of 1868, as declared in Walker v. Long, 109 N.C. 510 , 14 S.E. 299, 1891, the wife’s property was rendered secure to her, and not subject to the control of, or to the debts or obligations of, her husband. Thus, it was no longer necessary to invoke the fiction of the law in order to protect the wife’s property from the husband or his creditors in deeds made subsequent to the adoption of that Constitution. Freeman v. Lide, 176 N.C. 434 , 97 S.E. 402, 1918 N.C. LEXIS 265 (1918). See also Pippen v. Wesson, 74 N.C. 437 , 1876 N.C. LEXIS 115 (1876).

Conveyance of Separate Property. —

Where a married person conveys separate property without permission or joinder of the spouse and the non-owner spouse survives the owner spouse, the conveyed property is subject to the non-owner spouse’s elective life estate. Melvin v. Mills-Melvin, 126 N.C. App. 543, 486 S.E.2d 84, 1997 N.C. App. LEXIS 522 (1997).

Disposition of Personalty. —

There is no restriction whatever upon the right of a married woman to dispose of her personalty as fully and freely as if she had remained unmarried, either in the Constitution or by any statute. Vann v. Edwards, 135 N.C. 661 , 47 S.E. 784, 1904 N.C. LEXIS 79 (1904); Ball v. Paquin, 140 N.C. 83 , 52 S.E. 410, 1905 N.C. LEXIS 12 (1905); Rea v. Rea, 156 N.C. 529 , 72 S.E. 873 (1911).

Money from Sale of Wife’s Realty. —

Money received by the husband from a sale of the wife’s lands before the adoption of the Constitution in 1868 belonged to him absolutely, unless at the time he received it he agreed to invest it for her in some other way. But if the wife acquired the title and the marriage occurred prior to 1868, and the sale was made subsequent to that time, the proceeds would be her separate estate; and if the husband purchased other lands with such proceeds and took title in his own name, in the absence of any special agreement to the contrary, he would become a trustee for her. Kirkpatrick v. Holmes, 108 N.C. 206 , 12 S.E. 1037, 1891 N.C. LEXIS 39 (1891).

Mechanic’s Lien on Married Woman’s Property. —

For all debts contracted for work and labor done, a lien is given upon the property of a married woman. Ball v. Paquin, 140 N.C. 83 , 52 S.E. 410, 1905 N.C. LEXIS 12 (1905).

Presumption as to Property Delivered to Husband. —

Under the change made in the law of married women’s property rights by this section and N.C. Const., Art. X, § 4, where a married woman receives checks from her parents as personal gifts to her, which she endorses and delivers to her husband, there is a presumption that he receives the money in trust for her, and in the absence of evidence that it was a gift, she may recover the same in her action against him, or, after his death, against his personal representative. Etheredge v. Cochran, 196 N.C. 681 , 146 S.E. 711, 1929 N.C. LEXIS 71 (1929).

Statute of Limitations. —

Since a wife may now maintain an action without the joinder of her husband, when it concerns her separate property, and against her husband when it is between the husband and wife, and there is no exception in favor of the wife when she holds a claim against him, the statute of limitation will run against a note thus held by her. Graves v. Howard, 159 N.C. 594 , 75 S.E. 998, 1912 N.C. LEXIS 346 (1912). See G.S. 1-18 .

§ 52-2. Capacity to contract.

Subject to the provisions of G.S. 52-10 or 52-10.1, G.S. 39-7 and other regulations and limitations now or hereafter prescribed by the General Assembly, every married person is authorized to contract and deal so as to affect his or her real and personal property in the same manner and with the same effect as if he or she were unmarried.

History. 1871-2, c. 193, s. 17; Code, s. 1826; Rev., s. 2094; 1911, c. 109; C.S., s. 2507; 1945, c. 73, s. 16; 1965, c. 878, s. 1; 1977, c. 375, s. 13.

Cross References.

As to conveyances by husband and wife, see G.S. 39-7 et seq.

As to repeal of laws requiring private examination of married women, see G.S. 47-14.1 .

Editor’s Note.

Former G.S. 52-2 applied to married women only.

Laws 1871-1872, c. 193, s. 17, known as the Marriage Act, was the first legislation directly regulating the power of a married woman to make contracts. It seems that the only change made by this act was that the consent of the husband in writing was required in order to allow her to charge her separate estate. See Arrington v. Bell, 94 N.C. 247 (1886). However, a subsequent statute, known as the Martin Act, was passed March 6, 1911, and entirely changed the law. See 13 N.C.L. Rev. 62. The present section, except insofar as it is not limited to married women, is similar to the Martin Act.

Legal Periodicals.

For note on right of husband to recover medical expenses of wife from tort-feasor, see 37 N.C.L. Rev. 82 (1958).

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

For note on the presumption of a wife’s gratuitous services, see 16 Wake Forest L. Rev. 235 (1980).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the state in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For article, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” see 18 Campbell L. Rev. 203 (1996).

For article, “The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do,” see 85 N.C.L. Rev. 1761 (2007).

CASE NOTES

Analysis

• I. In General
• II. Decisions Under Former Law
  • A. Generally
  • B. Powers Conferred
  • C. Liabilities Incurred
  • D. Remedies for Breach

I.In General

The trust relationship existing between the parties may be revealed to alter the otherwise absolute obligation of the signers. Grimes v. Grimes, 47 N.C. App. 353, 267 S.E.2d 372, 1980 N.C. App. LEXIS 3078 (1980).

Where wife executes a promissory note as a comaker, she is primarily liable thereunder. Grimes v. Grimes, 47 N.C. App. 353, 267 S.E.2d 372, 1980 N.C. App. LEXIS 3078 (1980).

Comaker’s right to contribution is unaffected by the marital relationship of the parties to a note. Grimes v. Grimes, 47 N.C. App. 353, 267 S.E.2d 372, 1980 N.C. App. LEXIS 3078 (1980).

Wife is liable for necessary medical expenses provided for husband. North Carolina Baptist Hosps. v. Harris, 319 N.C. 347 , 354 S.E.2d 471, 1987 N.C. LEXIS 2012 (1987).

Conveyance of Separate Property. —

Where a married person conveys separate property without permission or joinder of the spouse and the non-owner spouse survives the owner spouse, the conveyed property is subject to the non-owner spouse’s elective life estate. Melvin v. Mills-Melvin, 126 N.C. App. 543, 486 S.E.2d 84, 1997 N.C. App. LEXIS 522 (1997).

II.Decisions Under Former Law

A.Generally

Editor’s Note. —

The cases below were decided under former statutory provisions relating to the capacity of married women to contract.

Common Law. —

At common law, the contract of a married woman was void, but it was held in equity that she might have an estate settled to her separate use, and that although she had no power to bind herself personally, she might with the concurrence of the trustee specifically charge her separate estate, and the courts of equity would enforce the charge against the property. But her contracts, in order to create a charge, had to refer expressly, or by necessary implication, to the separate estate as a means of payment, this being in the nature of an appointment or appropriation. Frazier v. Brownlow, 38 N.C. 237 , 1844 N.C. LEXIS 142 (1844); Knox v. Jordan, 58 N.C. 175 , 1859 N.C. LEXIS 269 (1859); Pippen v. Wesson, 74 N.C. 437 , 1876 N.C. LEXIS 115 (1876); Sanderlin v. Sanderlin, 122 N.C. 1 , 29 S.E. 55, 1898 N.C. LEXIS 183 (1898).

The common-law rule continued to be the law in this State until the adoption of the Constitution of 1868. Pippen v. Wesson, 74 N.C. 437 , 1876 N.C. LEXIS 115 (1876).

Legislature Has Power to Remove Restraints. —

The restraints upon a married woman’s power to contract rest upon statute, not upon the Constitution, and of course can be removed by statute. There is no prohibition upon the legislature to do so, and indeed the Supreme Court in many instances has indicated to the legislature that justice might be facilitated by more liberal legislation in that regard. Finger v. Hunter, 130 N.C. 529 , 41 S.E. 890, 1902 N.C. LEXIS 95 (1902).

This section operated prospectively and did not apply to contracts made prior to its adoption. Stephens v. Hicks, 156 N.C. 239 , 72 S.E. 313, 1911 N.C. LEXIS 163 (1911).

Section Does Not Apply to Estates Held by the Entirety. —

The doctrine of title by entireties between husband and wife as it existed at common law remains unchanged by statute in this State. And this section has been construed in Jones v. Smith, 149 N.C. 318 , 62 S.E. 1092 (1908), as not affecting estates held by husband and wife as tenants by the entirety. Davis v. Bass, 188 N.C. 200 , 124 S.E. 566, 1924 N.C. LEXIS 39 (1924); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Statute providing that earnings and damages from personal injury are wife’s property (see now G.S. 52-4 ) should be read in light of this section. Helmstetler v. Duke Power Co., 224 N.C. 821 , 32 S.E.2d 611, 1945 N.C. LEXIS 231 (1945).

B.Powers Conferred

Married Women Made Sui Juris. —

The effect of the Martin Act was to take married women out of the classification which the law recognized, prior to its enactment, and to make them, with respect to capacity to contract, sui juris. Lipinsky v. Revell, 167 N.C. 508 , 83 S.E. 820, 1914 N.C. LEXIS 159 (1914); Royal v. Southerland, 168 N.C. 405 , 84 S.E. 708, 1915 N.C. LEXIS 69 (1915); Warren v. Dail, 170 N.C. 406 , 87 S.E. 126, 1915 N.C. LEXIS 415 (1915); Thrash v. Ould, 172 N.C. 728 , 90 S.E. 915, 1916 N.C. LEXIS 386 (1916); Satterwhite v. Gallagher, 173 N.C. 525 , 92 S.E. 369, 1917 N.C. LEXIS 338 (1917); Dorsey v. Corbett, 190 N.C. 783 , 130 S.E. 842, 1925 N.C. LEXIS 170 (1925); Tise v. Hicks, 191 N.C. 609 , 132 S.E. 560, 1926 N.C. LEXIS 133 (1926); Taft v. Covington, 199 N.C. 51 , 153 S.E. 597, 1930 N.C. LEXIS 59 (1930). See Davis v. Cockman, 211 N.C. 630 , 191 S.E. 322, 1937 N.C. LEXIS 163 (1937); Etheridge v. Wescott, 244 N.C. 637 , 94 S.E.2d 846, 1956 N.C. LEXIS 509 (1956).

By virtue of this section, a married woman may make contracts affecting her personal and real property as though she were unmarried, except that the requirements of former G.S. 52-6 had to be met in contracts between her and her husband. Martin v. Bundy, 212 N.C. 437 , 193 S.E. 831 (1937). See G.S. 39-7 et seq., G.S. 52-6 , and notes thereto .

This section should be held to mean what it plainly says, that, except as to contracts with her husband, in which the forms required by former G.S. 52-6 had to be observed, a married woman can now make any and all contracts so as to affect her real and personal property, in the same manner and to the same effect as if she were unmarried. Lipinsky v. Revell, 167 N.C. 508 , 83 S.E. 820, 1914 N.C. LEXIS 159 (1914); Warren v. Dail, 170 N.C. 406 , 87 S.E. 126, 1915 N.C. LEXIS 415 (1915); Everett v. Ballard, 174 N.C. 16 , 93 S.E. 385, 1917 N.C. LEXIS 5 (1917); Taft v. Covington, 199 N.C. 51 , 153 S.E. 597, 1930 N.C. LEXIS 5 9 (1930). See also, Davis v. Cockman, 211 N.C. 630 , 191 S.E. 322, 1937 N.C. LEXIS 163 (1937); Cruthis v. Steele, 259 N.C. 701 , 131 S.E.2d 344, 1963 N.C. LEXIS 606 (1963).

This section practically constitutes married women free traders as to all their ordinary dealings. Price v. Charlotte Elec. Ry., 160 N.C. 450 , 76 S.E. 502, 1912 N.C. LEXIS 190 (1912); Croom v. Goldsboro Lumber Co., 182 N.C. 217 , 108 S.E. 735, 1921 N.C. LEXIS 208 (1921).

Former G.S. 52-6 Not Affected. —

This section did not alter the effect of former G.S. 52-6 , requiring certain findings and conclusions by the probate officer to accompany a conveyance of wife’s lands directly to her husband, and wife’s deed not probated accordingly was void. Singleton v. Cherry, 168 N.C. 402 , 84 S.E. 698, 1915 N.C. LEXIS 68 (1915); Butler v. Butler, 169 N.C. 584 , 86 S.E. 507, 1915 N.C. LEXIS 269 (1915).

Husband and Wife May Form Business Partnership. —

This section has been held to vest the wife with the power to contract with the husband so as to create a business partnership. Eggleston v. Eggleston, 228 N.C. 668 , 47 S.E.2d 243, 1948 N.C. LEXIS 400 (1948).

Oral Agreement to Hold Land in Trust for Husband. —

A married woman is under no legal handicap which would prevent her from entering into an oral agreement with her husband to hold title to real estate for his benefit or for their joint benefit. Carlisle v. Carlisle, 225 N.C. 462 , 35 S.E.2d 418, 1945 N.C. LEXIS 347 (1945).

C.Liabilities Incurred

Liability for Breach of Contract. —

When the legislature authorized a married woman to contract and deal so as to affect her real and personal property in the same manner, and with the same effect, as if she were unmarried, it authorized contracts for breach of which she would be liable as fully as if she had remained unmarried. Everett v. Ballard, 174 N.C. 16 , 93 S.E. 385, 1917 N.C. LEXIS 5 (1917).

On a breach of a married woman’s contract to convey her land, she may be held responsible in damages, as in other contracts by which she is properly bound. Warren v. Dail, 170 N.C. 406 , 87 S.E. 126, 1915 N.C. LEXIS 415 (1915).

Under the former law it was held that a married woman whose husband was an alien and never visited or resided in the United States was personally liable on her contracts. Levi v. Marsha, 122 N.C. 565 , 29 S.E. 832, 1898 N.C. LEXIS 304 (1898).

Liability of Wife Where Husband Acts as Her Agent. —

Under this section, a wife may appoint her husband as her agent for doing in her behalf work which may be of such dangerous character as to be a menace to the safety of others, and is liable with him for his negligence. Richardson v. Libes, 188 N.C. 112 , 123 S.E. 306, 1924 N.C. LEXIS 14 (1924).

Liability as Partner or Surety. —

Since the passage of the Martin Act, a wife has been held liable jointly and severally on her contracts whenever a partner or a surety. Bristol Grocery Co. v. Bails, 177 N.C. 298 , 98 S.E. 768, 1919 N.C. LEXIS 119 (1919).

Liability Where Wife Is Surety for Husband. —

A wife, by becoming surety on the obligations of her husband, creates a direct and separate liability to the creditor of the husband which makes her personally responsible, under this section, without requiring the statutory formalities necessary to the validity of certain contracts made directly between the wife and her husband. Royal v. Southerland, 168 N.C. 405 , 84 S.E. 708, 1915 N.C. LEXIS 69 (1915).

Estoppel. —

Since, in this State, the common-law disabilities of a married woman to contract, with certain exceptions, have been removed, she is bound by an estoppel the same as any other person. Tripp v. Langston, 218 N.C. 295 , 10 S.E.2d 916 (1940). See also, Builders’ Sash & Door Co. v. Joyner, 182 N.C. 518 , 109 S.E. 259 (1921) wherein the question whether the doctrine of title by estoppel applies to a married woman was raised but not decided. Cruthis v. Steele, 259 N.C. 701 , 131 S.E.2d 344, 1963 N.C. LEXIS 606 (1963).

Husband Still Liable for Funeral Expenses and Necessaries. —

The common-law rule that the husband is liable for the funeral expenses of his deceased wife and for “necessaries” during their married life is not affected by this section, when there is nothing to show an express promise to pay on her part, or that the articles were sold on her credit or under such circumstances as to make her exclusively or primarily liable according to the equitable principles of indebitatus assumpsit. Bowen v. Daugherty, 168 N.C. 242 , 84 S.E. 265, 1915 N.C. LEXIS 22 (1915).

D.Remedies for Breach

Specific Performance. —

When a married woman makes an executory contract to convey land and the requirements of G.S. 39-7 , regarding instruments affecting a married woman’s title, are not complied with, she can only be held in damages, and specific performance may not be enforced. Warren v. Dail, 170 N.C. 406 , 87 S.E. 126, 1915 N.C. LEXIS 415 (1915).

Judgment Against Wife as Surety for Husband. —

In Royal v. Southerland, 168 N.C. 405 , 84 S.E. 708 (1915), it was held that under this section a judgment could be rendered against a wife upon her obligation as surety to her husband. Thrash v. Ould, 172 N.C. 728 , 90 S.E. 915, 1916 N.C. LEXIS 386 (1916).

Judgment Enforced by Execution. —

It was held in Lipinsky v. Revell, 167 N.C. 508 , 83 S.E. 820 (1914), that judgment could be rendered against a married woman upon her contracts and enforced by execution, though she had not specifically charged her property with payment thereof. Thrash v. Ould, 172 N.C. 728 , 90 S.E. 915, 1916 N.C. LEXIS 386 (1916).

Wife May Claim Personal Property Exemption. —

Under the provisions of N.C. Const., Art. X, § 1, and of this section, the wife could claim her personal property exemption from the assets of a partnership with her husband when the validity of the partnership contract was not questioned by them under the provisions of former G.S. 52-6 , and each had consented that such exemption should be allowed to the other therefrom. Bristol Grocery Co. v. Bails, 177 N.C. 298 , 98 S.E. 768, 1919 N.C. LEXIS 119 (1919).

§ 52-3. Married person may insure spouse’s life.

Any married person in his or her own name, or in the name of a trustee with his assent, may cause to be insured for any definite time the life of his or her spouse, for his or her sole and separate use, and may dispose of the interest in the same by will.

History. Rev., s. 2099; C.S., s. 2512; 1965, c. 878, s. 1.

Cross References.

As to right of an individual to insure his or her life for the benefit of spouse and children, see N.C. Const., Art. X, § 5.

Editor’s Note.

Former G.S. 52-3 related to the capacity of a married woman to draw checks.

CASE NOTES

Insurable Interest in Spouse’s Life. —

This section does not create in a wife an insurable interest in the life of her husband. She has such an interest without the benefit of the section. Cook v. Bankers Life & Cas. Co., 329 N.C. 488 , 406 S.E.2d 848, 1991 N.C. LEXIS 512 (1991).

Right to Insure Spouse’s Life Without Consent. —

This section gives married persons the right to insure their spouses’ lives without their consent. Cook v. Bankers Life & Cas. Co., 329 N.C. 488 , 406 S.E.2d 848, 1991 N.C. LEXIS 512 (1991) (distinguishing) Acme Mfg. Co. v. McCormick, 175 N.C. 277 , 95 S.E. 555, 1918 N.C. LEXIS 55 (1918).

§ 52-4. Earnings and damages.

The earnings of a married person by virtue of any contract for his or her personal service, and any damages for personal injuries, or other tort sustained by either, can be recovered by such person suing alone, and such earnings or recovery shall be his or her sole and separate property.

History. 1913, c. 13, s. 1; C.S., s. 2513; 1965, c. 878, s. 1.

Cross References.

For constitutional provision as to property of married women, see N.C. Const., Art. X, § 4.

Editor’s Note.

Former G.S. 52-4 related to husband’s joinder in conveyance or lease of wife’s land.

Legal Periodicals.

For comment on this section, see 29 N.C.L. Rev. 178 (1951).

For note on equitable distribution law as it relates to personal injury awards in divorce actions, see 65 N.C.L. Rev. 1332 (1987).

For note relating to revocation of the marital presumption and adoption of the analytic approach to the classification of personal injury settlements, in light of Johnson v. Johnson, 317 N.C. 437 , 346 S.E.2d 430 (1986), see 22 Wake Forest L. Rev. 931 (1987).

For article, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” see 18 Campbell L. Rev. 203 (1996).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under former statutory provisions relating to married women.

Basis of Section. —

In the concurring opinion in Patterson v. Franklin, 168 N.C. 75 , 84 S.E. 18 (1915) Clark, C.J., states that this section was passed as a result of the decision in Price v. Charlotte Elec. Co., 160 N.C. 450 , 76 S.E. 502 (1912). To the same effect, see 301 N.C. 728 , 274 S.E.2d 230 (1981).

This section is not inconsistent with or repugnant to G.S. 50-20 . Johnson v. Johnson, 317 N.C. 437 , 346 S.E.2d 430, 1986 N.C. LEXIS 2428 (1986).

This section governs legal interests in property during an ongoing marriage, while G.S. 50-20 governs its disposition after divorce. Johnson v. Johnson, 317 N.C. 437 , 346 S.E.2d 430, 1986 N.C. LEXIS 2428 (1986).

Section Read in Light of Constitution and G.S. 52-2 . —

This section should be read in the light of N.C. Const., Art. X, § 4, which protects a married woman in the sole ownership of her property, and also in connection with G.S. 52-2 , which seeks to secure to her the free use of her property. Helmstetler v. Duke Power Co., 224 N.C. 821 , 32 S.E.2d 611, 1945 N.C. LEXIS 231 (1945).

Husband Deprived of Former Rights. —

By virtue of the statutes giving married women separate property rights and the right to sue for injuries, the husband is deprived of his former rights in his wife’s property and choses in action. Hinnant v. Tidewater Power Co., 189 N.C. 120 , 126 S.E. 307, 1925 N.C. LEXIS 260 (1925).

Marital Rights and Duties Unaffected. —

The mutual rights and duties growing out of the marital relationship are not affected by this and the following sections. Ritchie v. White, 225 N.C. 450 , 35 S.E.2d 414, 1945 N.C. LEXIS 346 (1945).

A married woman is still a feme covert with the rights, privileges and obligations incident to such status under the law. Coley v. Dalrymple, 225 N.C. 67 , 33 S.E.2d 477, 1945 N.C. LEXIS 261 (1945). See also Buford v. Mochy, 224 N.C. 235 , 29 S.E.2d 729, 1944 N.C. LEXIS 342 (1944).

This section does not relieve a married woman of her marital obligations or deny to her the privilege of sharing in the family duties and aiding in such work as the helpmate of her husband, when minded so to do. Coley v. Dalrymple, 225 N.C. 67 , 33 S.E.2d 477, 1945 N.C. LEXIS 261 (1945).

Spouses May Sue Each Other in Tort. —

The common-law disability of spouses to sue each other in tort actions has been completely removed in this State. Foster v. Foster, 264 N.C. 694 , 142 S.E.2d 638, 1965 N.C. LEXIS 1262 (1965).

A married woman has the fullest power to bring actions, even against her husband, and in all cases whatever. Crowell v. Crowell, 180 N.C. 516 , 105 S.E. 206, 1920 N.C. LEXIS 126 (1920); In re Will of Witherington, 186 N.C. 152 , 119 S.E. 11, 1923 N.C. LEXIS 195 (1923).

Wife’s right to sue her husband extends to tort actions. Crowell v. Crowell, 181 N.C. 66 , 106 S.E. 149, 1921 N.C. LEXIS 18 (1921).

In this jurisdiction a wife may maintain an action against her husband for negligent injury, or if such injury results in death, her personal representative may maintain such action. King v. Gates, 231 N.C. 537 , 57 S.E.2d 765, 1950 N.C. LEXIS 480 (1950); First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965).

Nonresident Wife Has Right of Action for Husband’s Tort. —

The right of a married woman to maintain an action against her husband to recover for negligent injury is not limited to residents of this State, and a nonresident wife may maintain an action here against her nonresident husband on a transitory cause of action which arises in this State, and she is entitled to any recovery as her separate property. Bogen v. Bogen, 219 N.C. 51 , 12 S.E.2d 649, 1941 N.C. LEXIS 270 (1941).

Impairment of Capacity to Work and Earn Money. —

This section is in accord with the realistic trend of the modern decisions, which recognize the fact that a wife, as an individual, has a personal right to work and earn money, whether she is gainfully employed at the time or engaged merely in the performance of household duties; and where her capacity to work and earn money is impaired by injury, she has suffered a definite, substantial loss. Johnson v. Lewis, 251 N.C. 797 , 112 S.E.2d 512, 1960 N.C. LEXIS 367 (1960).

A person is not deprived of the right to recover damages because of inability to labor or transact business in the future, because of the fact that at the time of the injury he is not engaged in any particular employment. The fact that a woman attends merely to household duties will not deprive her of a right to recover for loss of earning capacity. Johnson v. Lewis, 251 N.C. 797 , 112 S.E.2d 512, 1960 N.C. LEXIS 367 (1960).

Services Rendered to Husband. —

For a wife to recover for services rendered to her husband in his business, or outside of her domestic duties, while living with him under the marital relation, there must be either an express or an implied promise on his part to pay for them; and the relationship of marriage, nothing else appearing, negatives an implied promise on his part to pay. Dorsett v. Dorsett, 183 N.C. 354 , 111 S.E. 541, 1922 N.C. LEXIS 272 (1922).

Husband and Wife Employed Together. —

Since the passage of the Martin Act and this section, the separate earnings of a married woman belong to her, and she may sue and recover them alone; and where the evidence tends only to establish the fact that the employer was to pay husband and wife each a certain and different amount for services, the husband could not recover the whole upon the theory that the amount he was to receive was augmented by what wife was to receive for her separate services. Croom v. Goldsboro Lumber Co., 182 N.C. 217 , 108 S.E. 735, 1921 N.C. LEXIS 208 (1921).

Services rendered by a married woman outside the home, and not within the scope of her household or domestic duties, would properly be recoverable on implied assumpsit or quantum meruit in her own name. Coley v. Dalrymple, 225 N.C. 67 , 33 S.E.2d 477, 1945 N.C. LEXIS 261 (1945).

Recovery for Loss of Consortium. —

It is now well settled in practically every jurisdiction that wife has a right to the consortium of her husband and can recover when there has been an intentional and direct invasion or breach of the marital relations. In every case, however, the recovery was allowed only where there was an intentional invasion. The right of the wife to recover in North Carolina for a direct and intentional invasion is clearly settled. Brown v. Brown, 124 N.C. 19 , 32 S.E. 320, 1899 N.C. LEXIS 6 (1899). See also, 3 N.C.L. Rev. 100 (1925).

Recovery for Loss of Consortium Allowed in Negligence Cases. —

Wife has cause of action for loss of consortium resulting from a negligent injury to her husband. Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295 , 266 S.E.2d 818, 1980 N.C. LEXIS 1075 (1980).

Married women’s legislation in North Carolina gave a wife the equal right to sue for loss of her husband’s consortium. Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295 , 266 S.E.2d 818, 1980 N.C. LEXIS 1075 (1980).

But Action for Loss of Consortium Must Be Joined With Injured Spouse’s Action. —

A spouse may maintain a cause of action for loss of consortium due to the negligent actions of third parties so long as that action for loss of consortium is joined with any suit the other spouse may have instituted to recover for his or her personal injuries. Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295 , 266 S.E.2d 818, 1980 N.C. LEXIS 1075 (1980).

“Consortium” defined. —

While consortium is difficult to define, better view is that it embraces service, society, companionship, sexual gratification and affection. Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295 , 266 S.E.2d 818, 1980 N.C. LEXIS 1075 (1980).

Action of Wife for Tort to Husband. —

Under the former wording of this section, the husband could not sue to recover his wife’s earnings or damages for tort committed to her and there was no reason why she could sue for tort or injuries inflicted on her husband. The law has never authorized the wife to maintain such action for torts sustained by the husband. Hipp v. E.L. Dupont de Nemours & Co., 182 N.C. 9 , 108 S.E. 318, 1921 N.C. LEXIS 164 (1921).

Action Against Seducer. —

Under the provisions of this section, a married woman who had been seduced could, in proper instances, maintain her action for damages against her seducer without joinder of her husband as a party. Hyatt v. McCoy, 194 N.C. 25 , 138 S.E. 405, 1927 N.C. LEXIS 7 (1927).

Joinder of Husband. —

Since the passage of this section, a married woman may sue without joining her husband to recover damages she has sustained by reason of a personal injury wrongfully inflicted. Kirkpatrick v. Crutchfield, 178 N.C. 348 , 100 S.E. 602, 1919 N.C. LEXIS 457 (1919).

While husband is not a necessary party to wife’s action to recover for the value of her services rendered upon a quantum meruit, under this section, his joinder therein as a party plaintiff is not improper; and where he has alleged an independent cause of action upon a quantum meruit, the Supreme Court, on appeal, in the exercise of its discretion, may remand the cause with direction that the allegations of the complaint as to the statement of the husband’s cause be stricken out and the action of the wife proceeded with. Shore v. Holt, 185 N.C. 312 , 117 S.E. 165, 1923 N.C. LEXIS 72 (1923).

The law formerly prevailing allowed the husband the earnings of his wife and the proceeds of her labor, but the husband could confer upon the wife the right to her earnings, upon which they became her separate estate, giving her a right of action to recover them in her own name. Patterson v. Franklin, 168 N.C. 75 , 84 S.E. 18, 1915 N.C. LEXIS 11 (1915).

§ 52-5. Torts between husband and wife.

A husband and wife have a cause of action against each other to recover damages sustained to their person or property as if they were unmarried.

History. 1951, c. 263; 1965, c. 878, s. 1.

Legal Periodicals.

For comment on this section, see 29 N.C.L. Rev. 395 (1951).

For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For comment on adverse marital testimony in criminal actions after the modification of the common-law rule by State v. Freeman, 302 N.C. 591 , 276 S.E.2d 450 (1981), see 60 N.C.L. Rev. 874 (1982).

For note, “It’s Time to Abolish North Carolina’s Parent-Child Immunity, But Who’s Going to Do It?—Coffey v. Coffey and North Carolina General Statutes Section 1-539.21,” see 68 N.C. L. Rev. 1317 (1990).

For article, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” see 18 Campbell L. Rev. 203 (1996).

For note and comment, “Liner v. Brown: Where Should We Go From Here—Two Different Approaches for North Carolina,” see 19 Campbell L. Rev. 447 (1997).

For article, “The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do,” see 85 N.C.L. Rev. 1761 (2007).

CASE NOTES

Purpose of Section. —

This section was intended to change for the future the result reached in Scholtens v. Scholtens, 230 N.C. 149 , 52 S.E.2d 350, 1949 N.C. LEXIS 590 (1949); Shaw v. Lee, 258 N.C. 609 , 129 S.E.2d 288, 1963 N.C. LEXIS 458 (1963). See also, 29 N.C.L. Rev. 359.

The legislature by statute modified the common law and permitted the wife to sue the husband for injuries tortiously inflicted. Shaw v. Lee, 258 N.C. 609 , 129 S.E.2d 288, 1963 N.C. LEXIS 458 (1963); Ayers v. Ayers, 269 N.C. 443 , 152 S.E.2d 468, 1967 N.C. LEXIS 1089 (1967).

This section permits one spouse to maintain an action against the other for injuries caused by his or her tort. Cox v. Shaw, 263 N.C. 361 , 139 S.E.2d 676, 1965 N.C. LEXIS 1286 (1965).

The common-law disability of spouses to sue each other in tort actions has been completely removed in this State. Foster v. Foster, 264 N.C. 694 , 142 S.E.2d 638, 1965 N.C. LEXIS 1262 (1965).

A wife may maintain an action against her husband for assault and battery. Ayers v. Ayers, 269 N.C. 443 , 152 S.E.2d 468, 1967 N.C. LEXIS 1089 (1967).

Or for Personal Injuries from His Negligence. —

In this jurisdiction a wife has the right to sue her husband and recover damages for personal injuries inflicted by his actionable negligence. First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965).

Husband May Recover from Wife Medical Expenses He Paid for Daughter Negligently Injured by Wife. —

By virtue of the express provisions of this section, plaintiff father was entitled to recover from defendant mother the medical expenses expended by him on behalf of his daughter for injuries to her caused by defendant’s actionable negligence in the operation of an automobile. Foster v. Foster, 264 N.C. 694 , 142 S.E.2d 638, 1965 N.C. LEXIS 1262 (1965).

Plaintiff’s action to recover necessary medical expenses expended by him for his infant daughter is within the fair intent and meaning of this section imposing liability for damages sustained to property. Foster v. Foster, 264 N.C. 694 , 142 S.E.2d 638, 1965 N.C. LEXIS 1262 (1965).

Marriage does not automatically preclude an action for trespass. Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350, 1996 N.C. App. LEXIS 577 (1996).

Wrongful Death Action May Be Maintained Against Husband for Wife’s Death. —

If a husband’s negligence results in the death of his wife, her personal representative may maintain an action against him for her wrongful death. Cox v. Shaw, 263 N.C. 361 , 139 S.E.2d 676, 1965 N.C. LEXIS 1286 (1965); First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965).

Since this section provides that an injured wife has a cause of action against her husband for damages for personal injury, the administrator of her estate may maintain an action for wrongful death when she does not survive. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, 1971 N.C. App. LEXIS 1409 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 915 (1971).

Conflict of Laws. —

In cases involving intra-family immunity, the law of the state where the wrong took place applies instead of the law of the state of the parties’ residence. Henry v. Henry, 29 N.C. App. 174, 223 S.E.2d 564, 1976 N.C. App. LEXIS 2406 , aff'd, 291 N.C. 156 , 229 S.E.2d 158, 1976 N.C. LEXIS 942 (1976). But see G.S. 52-5.1 .

§ 52-5.1. Tort actions between husband and wife arising out of acts occurring outside State.

A husband and wife shall have a cause of action against each other to recover damages for personal injury, property damage or wrongful death arising out of acts occurring outside of North Carolina, and such action may be brought in this State when both were domiciled in North Carolina at the time of such acts.

History. 1967, c. 855.

Legal Periodicals.

For article on “Conflict of Spousal Immunity Laws: The Legislature Takes a Hand,” discussing this section, see 46 N.C.L. Rev. 506 (1968).

For note on the “greatest interest rule” as a choice-of-law conflicts rule, see 47 N.C.L. Rev. 407 (1969).

For note on choice-of-law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

CASE NOTES

Former Law. —

Before the passage of this section, it was held that the legislature did not intend in G.S. 52-5 to extend its enactment beyond State borders and create in a spouse a right of action against the other for acts done beyond the borders of North Carolina. Shaw v. Lee, 258 N.C. 609 , 129 S.E.2d 288, 1963 N.C. LEXIS 458 (1963).

This section was designed by the legislature to enable a North Carolina resident to sue in the courts of this State, notwithstanding the rule that the law of the state wherein the injury occurred determines the right of the injured spouse to bring an action for damages. Henry v. Henry, 291 N.C. 156 , 229 S.E.2d 158, 1976 N.C. LEXIS 942 (1976).

The legislature, by the enactment of this section, rescinded the rule with reference to the right of a wife domiciled in North Carolina to maintain, in the courts of this State, an action for damages for injuries proximately caused by the negligence of her husband in another state. Henry v. Henry, 291 N.C. 156 , 229 S.E.2d 158, 1976 N.C. LEXIS 942 (1976).

This section left untouched the rule with reference to the right of a nonresident wife to sue her husband in the courts of North Carolina to recover damages for injuries inflicted in this State and proximately caused by his negligence. Henry v. Henry, 291 N.C. 156 , 229 S.E.2d 158, 1976 N.C. LEXIS 942 (1976).

§ 52-6. [Repealed]

Repealed by Session Laws 1977, c. 375, s. 1.

Cross References.

As to contracts between husband and wife, see now G.S. 52-10 .

§ 52-7. Validation of certificates of notaries public as to contracts or conveyances between husband and wife.

Any contract between husband and wife coming within the provisions of G.S. 52-6 , executed prior to the first day of January, 1955, acknowledged before a notary public and containing a certificate of the notary public of his conclusions and findings of fact that such conveyance is not unreasonable or injurious to the wife, is hereby in all respects validated and confirmed, to the same extent as though said certifying officer were one of the officers named in G.S. 52-6 .

History. 1955, c. 380; 1965, c. 878, s. 1.

Editor’s Note.

G.S. 52-6 , referred to in this section, was repealed by Session Laws 1977, c. 375, s. 1.

Former G.S. 52-7 prohibited conveyance or lease of wife’s land by husband without her consent. The provisions of present G.S. 52-7 are almost identical to those of former G.S. 52-12.1.

§ 52-8. Validation of contracts failing to comply with provisions of former § 52-6.

Any contract between husband and wife coming within the provisions of G.S. 52-6 executed between January 1, 1930, and January 1, 1978, which does not comply with the requirement of a private examination of the wife or with the requirements that there be findings that such a contract between a husband and wife is not unreasonable or injurious to the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband. This section shall not affect pending litigation.

History. 1957, c. 1178; 1959, c. 1306; 1965, c. 207; c. 878, s. 1; 1967, c. 1183, s. 1; 1971, c. 101; 1973, c. 1387, s. 1; 1975, c. 495, s. 1; 1977, c. 375, s. 15; 1981, c. 599, s. 16.

Editor’s Note.

G.S. 52-6 , referred to in this section, was repealed by Session Laws 1977, c. 375, s. 1, effective January 1, 1978.

Former G.S. 52-8 related to the capacity of a married woman to make a will. The provisions of present G.S. 52-8 are similar to those of former G.S. 52-12.2.

Legal Periodicals.

For note discussing purchase money resulting trust doctrine in North Carolina, see 12 N.C. Cent. L.J. 526 (1981).

CASE NOTES

This section is a curative statute. Hutchins v. Hutchins, 260 N.C. 628 , 133 S.E.2d 459, 1963 N.C. LEXIS 781 (1963).

This section was amended in 1981 in an attempt to cure deeds which lack the certification that the transaction was not unreasonable or injurious to the wife. West v. Hays, 82 N.C. App. 574, 346 S.E.2d 690, 1986 N.C. App. LEXIS 2507 (1986).

Legislative Intent. —

In enacting this section, the legislative intent was to validate contracts made void by former G.S. 52-6 , except for those in pending litigation. Murphy v. Davis, 61 N.C. App. 597, 300 S.E.2d 871, 1983 N.C. App. LEXIS 2706 (1983).

Applicability of Section. —

This section was not applicable where not only was the private examination of the wife required by former G.S. 52-6 not taken, but there was no finding by the certifying officer of the officer’s conclusions and findings of fact as to whether or not the deed was unreasonable or injurious to the wife as required by former G.S. 52-6 (b) and the certifying officer was not one of those authorized by former G.S. 52-6(c) to make the required certificate. Boone v. Brown, 11 N.C. App. 355, 181 S.E.2d 157, 1971 N.C. App. LEXIS 1522 (1971).

Deed executed in 1947, which was void because the then applicable provisions of former G.S. 47-39 and G.S. 52-12 were not complied with, in that the clerk of court failed to find that the transaction was not “unreasonable or injurious” to grantor’s wife, could not be cured by this section as amended in 1981, where the rights of wife’s devisees in the property vested in 1978 upon her death. West v. Hays, 82 N.C. App. 574, 346 S.E.2d 690, 1986 N.C. App. LEXIS 2507 (1986).

This section would not operate to cure a deed which was void for failure to comply with former version of G.S. 52-12 , relating to a private examination of a married woman grantor and a finding that the conveyance was not unreasonable or injurious to the wife. Dunn v. Pate, 98 N.C. App. 351, 390 S.E.2d 712, 1990 N.C. App. LEXIS 407 (1990).

This section purports to cure the execution of a trust agreement not acknowledged by the wife as required by former G.S. 52-6 . Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520 , 131 S.E.2d 456, 1963 N.C. LEXIS 623 (1963).

Conveyance Not Complying with Former G.S. 52-6 Void Unless Validated. —

A wife’s deed purporting to convey property to her husband, without complying with former G.S. 52-6 , and not validated by this section, was void. Murphy v. Davis, 61 N.C. App. 597, 300 S.E.2d 871, 1983 N.C. App. LEXIS 2706 (1983).

A contract between a husband and wife to make a joint will was void as to the wife where it was not executed by her in accordance with former G.S. 52-6 , and its invalidity was not affected by this curative statute and G.S. 39-13.1(b), where both curative statutes were enacted after the rights of the parties under the contract vested upon the death of the husband, and the contract was not “in all other respects regular” except for the failure to privately examine the wife as required by the curative statutes. Mansour v. Rabil, 277 N.C. 364 , 177 S.E.2d 849, 1970 N.C. LEXIS 621 (1970).

Postnuptial agreement executed in 1977 could not be set aside due to any alleged noncompliance with former G.S. 52-6 (repealed 1977) or G.S. 52-10 (amended 1977). Brantley v. Watson, 113 N.C. App. 234, 438 S.E.2d 211, 1994 N.C. App. LEXIS 3 (1994).

Use of Section to Validate Separation Agreement Precluded. —

Where a wife’s acknowledgment of a separation agreement was fatally defective under former G.S. 52-6 because there was no private examination of the wife and thus no finding as to whether the agreement was unreasonable or injurious to the wife, and because the acknowledgment was certified by a Judge Advocate in the Marine Corps who did not qualify as a “certifying officer” under former G.S. 52-6 (c) since his position was not that of an “equivalent or corresponding officer” of the jurisdiction where the examination and acknowledgment were to be made, the omission of the private examination and the lack of authority on the part of the certifying officer precluded the use of curative statutes, this section and G.S. 47-81.2 , to validate the agreement. DeJaager v. DeJaager, 47 N.C. App. 452, 267 S.E.2d 399, 1980 N.C. App. LEXIS 3142 (1980).

§ 52-9. Effect of absolute divorce decree on certificate failing to comply with former § 52-6.

Whenever it appears that, since the execution of a contract between a husband and wife in which the certificate of acknowledgment thereof fails to comply with the requirements of G.S. 52-6 , a valid decree of absolute divorce between said husband and wife has been rendered, no action shall be maintained by her or anyone claiming under her for the recovery of the possession of, or to establish title to any interest in any property described in such contract unless such action is commenced within seven years after such decree of absolute divorce has become final or unless such action is commenced before January 1, 1978, whichever date is earlier.

History. 1957, c. 1260; 1965, c. 878, s. 1; 1977, c. 375, s. 14.

Editor’s Note.

G.S. 52-6 , referred to in this section, was repealed by Session Laws 1977, c. 375, s. 1, effective January 1, 1978.

Provisions similar to former G.S. 52-9 are now contained in present G.S. 52-3 . The provisions of present G.S. 52-9 are almost identical to those of former G.S. 52-12.3.

§ 52-10. Contracts between husband and wife generally; releases.

1. Contracts between husband and wife not inconsistent with public policy are valid, and any persons of full age about to be married and married persons may, with or without a valuable consideration, release and quitclaim such rights which they might respectively acquire or may have acquired by marriage in the property of each other; and such releases may be pleaded in bar of any action or proceeding for the recovery of the rights and estate so released. No contract or release between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of either spouse, or the accruing income thereof for a longer time than three years next ensuing the making of such contract or release, unless it is in writing and is acknowledged by both parties before a certifying officer.

   (a1) A contract between a husband and wife made, with or without a valuable consideration, during a period of separation to waive, release, or establish rights and obligations to post separation support, alimony, or spousal support is valid and not inconsistent with public policy. A provision waiving, releasing, or establishing rights and obligations to post separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation, if the contract satisfies all of the following requirements:

   1. The contract is in writing.
   2. The provision waiving the rights or obligations is clearly stated in the contract.
   3. The contract was acknowledged by both parties before a certifying officer.

      A release made pursuant to this subsection may be pleaded in bar of any action or proceeding for the recovery of the rights released.

2. Such certifying officer shall be a notary public, or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk of the General Court of Justice, or the equivalent or corresponding officers of the state, territory or foreign country where the acknowledgment is made. Such officer must not be a party to the contract.
3. This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a contract or release between such husband and wife.

History. 1871-2, c. 193, s. 28; Code, s. 1836; Rev., s. 2108; C.S., s. 2516; 1959, c. 879, s. 12; 1965, c. 878, s. 1; 1977, c. 375, s. 2; 2013-140, s. 1.

Cross References.

As to abolition of dower and curtesy, see G.S. 29-4 .

As to right of surviving spouse to elect life estate in lieu of intestate share, see G.S. 29-30 .

As to distribution by court of marital property upon divorce, see G.S. 50-20 and G.S. 50-21 .

As to separation agreements, see G.S. 52-10.1 .

As to antenuptial contracts, see G.S. 52B-1 et seq.

Editor’s Note.

Provisions similar to former G.S. 52-10 are now contained in present G.S. 52-4 . The provisions of present G.S. 52-10 are similar to those of former G.S. 52-13 .

Effect of Amendments.

Session Laws 2013-140, s. 1, effective June 19, 2013, added subsection (a1).

Legal Periodicals.

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

For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the state in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

For 1984 survey, “Property Settlement or Separation Agreement: Perpetuating the Confusion,” see 63 N.C.L. Rev. 1166 (1985).

For 1984 survey, “Intestate Succession of Illegitimate Children in North Carolina,” see 63 N.C.L. Rev. 1274 (1985).

For note on contractual agreements as a means of avoiding equitable distribution, in light of Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984), see 21 Wake Forest L. Rev. 213 (1985).

For article, “The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers,” see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

Common Law. —

At common law the husband and wife were regarded as so entirely one as to be incapable of either contracting with or suing one another, but in equity it was always otherwise, and there many of their contracts with each other were recognized and enforced. George v. High, 85 N.C. 99 , 1881 N.C. LEXIS 212 (1881).

Construction With Other Provisions. —

This section and G.S. 52-10.1 are distinguishable in that a separation agreement may affect support rights whereas this section refers only to “rights . . . in property”; further, as indicated by the terms requiring formalities for contracts entered into “during coverture,” a contract under this section may be entered into at any time during marriage, not only in contemplation of separation or divorce. Williams v. Williams, 120 N.C. App. 707, 463 S.E.2d 815, 1995 N.C. App. LEXIS 942 (1995), aff'd, 343 N.C. 299 , 469 S.E.2d 553, 1996 N.C. LEXIS 264 (1996).

The validity of a separation agreement as it related to a waiver of alimony was not to be judged in the context of this section, but executed pursuant to G.S. 52-10.1 . Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312, 1999 N.C. App. LEXIS 1054 (1999).

Those contracts between spouses which conflict with public policy are void. Williams v. Williams, 120 N.C. App. 707, 463 S.E.2d 815, 1995 N.C. App. LEXIS 942 (1995), aff'd, 343 N.C. 299 , 469 S.E.2d 553, 1996 N.C. LEXIS 264 (1996).

Legislature Did Not Intend to Reduce Marriage to Commercial Basis. —

While in ordinary transactions married women are permitted to deal with their earnings and property practically as they please or as free traders, the General Assembly did not intend to reduce the institution of marriage, or the obligations of family life, to a commercial basis. Ritchie v. White, 225 N.C. 450 , 35 S.E.2d 414, 1945 N.C. LEXIS 346 (1945).

G.S. 52-10 and G.S. 52-10.1 were enacted without providing women any extra protection not offered to men; therefore, a separation agreement should be viewed today like any other bargained-for exchange between parties who are presumably on equal footing. Knight v. Knight, 76 N.C. App. 395, 333 S.E.2d 331, 1985 N.C. App. LEXIS 3877 (1985).

Same rules which govern interpretation of contracts generally apply to separation agreements. Blount v. Blount, 72 N.C. App. 193, 323 S.E.2d 738, 1984 N.C. App. LEXIS 3997 (1984).

What Contracts Included. —

This section clearly refers throughout to contracts between the husband and the wife, and does not and was not intended to affect contracts between husband and wife and third parties. Jackson v. Beard, 162 N.C. 105 , 78 S.E. 6 (1913). In accord with the main volume. See Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987).

Postnuptial agreement executed in 1977 could not be set aside due to any alleged noncompliance with former G.S. 52-6 (repealed 1977) or G.S. 52-10 (amended 1977). Brantley v. Watson, 113 N.C. App. 234, 438 S.E.2d 211, 1994 N.C. App. LEXIS 3 (1994).

Antenuptial Agreement. —

A woman in contemplation of marriage was expressly authorized by this section to release by valid contract her former right of dower in the lands of her intended husband. Turner v. Turner, 242 N.C. 533 , 89 S.E.2d 245, 1955 N.C. LEXIS 646 (1955).

It is well settled in this jurisdiction that a man and woman contemplating marriage may enter into a valid contract with respect to the property and property rights of each after the marriage, and such contracts will be enforced as written. In re Estate of Loftin, 285 N.C. 717 , 208 S.E.2d 670, 1974 N.C. LEXIS 1129 (1974).

Antenuptial contracts, when properly executed and acknowledged, are not against public policy and may act as a bar to the wife’s right to dissent and to petition for a year’s allowance. In re Estate of Loftin, 285 N.C. 717 , 208 S.E.2d 670, 1974 N.C. LEXIS 1129 (1974).

In the absence of contrary provisions in an antenuptial agreement, or of special statutory provisions, a separation and reconciliation between husband and wife will not affect or extinguish property rights under such an agreement. Turner v. Turner, 242 N.C. 533 , 89 S.E.2d 245, 1955 N.C. LEXIS 646 (1955).

Prenuptial agreement. —

Trial court did not err by allowing equitable distribution of property acquired during the parties’ marriage, as the parties’ prenuptial agreement, G.S. 52-10(a) , did not waive their claims to equitable distribution; based on the former husband’s stated intentions regarding the creation of the agreement, his discussions with an attorney, and the actual language of the agreement, the trial court could properly find that the agreement constituted a “free trader” agreement that did not waive the parties’ rights to equitable distribution. McIntyre v. McIntyre, 188 N.C. App. 26, 654 S.E.2d 798, 2008 N.C. App. LEXIS 85 , aff'd, 362 N.C. 503 , 666 S.E.2d 749, 2008 N.C. LEXIS 799 (2008).

When one person provides purchase money to pay for real property and the title is taken in the name of another a resulting trust commensurate with his interest arises in favor of the one furnishing the consideration. Such a trust is not dependent upon any agreement between the parties. Rather, it functions to effectuate the intention, at the time of transfer, of the party furnishing the purchase money and such intention is to be determined from all the attendant facts and circumstances. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852, 1988 N.C. App. LEXIS 744 (1988).

Section Inapplicable to Support Obligation. —

This section, which authorizes post-nuptial interspousal agreements not inconsistent with public policy that affect the spouses’ marital property interests, is construed not to apply to the husband’s (supporting spouse’s) obligation, and the wife’s (dependent spouse’s) right, to support. Gray v. Snyder, 704 F.2d 709, 1983 U.S. App. LEXIS 29151 (4th Cir. 1983).

This section relates to the release of an interest in property, but has no bearing whatever on the right of a wife to support. Motley v. Motley, 255 N.C. 190 , 120 S.E.2d 422, 1961 N.C. LEXIS 548 (1961).

Duty of Support May Be Discharged under Separation Agreement. —

North Carolina law has long recognized that the husband’s (supporting spouse’s) duty of support may be discharged by a valid separation agreement between the spouses under which fixed benefits are provided the wife (dependent spouse) in consideration of the discharge. To be valid, such a discharge of support agreement must (1) be made between spouses either actually separated or intending immediately to separate; and (2) be executed in accordance with statutory formality requirements. Gray v. Snyder, 704 F.2d 709, 1983 U.S. App. LEXIS 29151 (4th Cir. 1983).

Separation Agreement Not Against Public Policy. —

A deed of separation executed by husband and wife is not against the policy of this State, when properly made. Archbell v. Archbell, 158 N.C. 408 , 74 S.E. 327, 1912 N.C. LEXIS 60 (1912).

Construction of Separation Agreement. —

The language of a separation agreement that the husband released “all rights” that he might have “in any estate” of his wife at her death was sufficient to support the conclusion that a release of his former right of tenancy by the curtesy was intended. The word “estate” was comprehensive enough to include land. Blankenship v. Blankenship, 234 N.C. 162 , 66 S.E.2d 680, 1951 N.C. LEXIS 422 (1951).

Assuming that a provision in a separation agreement was intended by the husband and the wife to address their right to exclusive sexual intercourse with the other, the provision related only to the spouses’ rights against each other, and, as a matter of law, the provision did not waive the parties’ rights, with respect to third parties, for purposes of a criminal conversation claim. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35, 2002 N.C. App. LEXIS 1522 (2002).

Where the terms of a separation agreement are plain and explicit, the court will determine the legal effect and enforce it as written by the parties. Blount v. Blount, 72 N.C. App. 193, 323 S.E.2d 738, 1984 N.C. App. LEXIS 3997 (1984).

To be valid, a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Until deed of separation is rescinded, defendant cannot attack the legality of the separation or obtain alimony from plaintiff. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

As to attack on deed of separation by married woman, see Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968); In re Estate of Loftin v. Loftin, 21 N.C. App. 627, 205 S.E.2d 574, 1974 N.C. App. LEXIS 1888 , aff'd, 285 N.C. 717 , 208 S.E.2d 670, 1974 N.C. LEXIS 1129 (1974).

Agreement as to Alimony. —

Parties to a divorce may enter into a valid agreement settling the question of alimony, and unless the court then orders alimony to be paid, the terms of the agreement are binding and can only be modified by the consent of both parties. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

Mutual Releases Do Not Bar Wife’s Right to Temporary Alimony. —

Mutual releases between husband and wife of their interests in each other’s separate property do not bar the wife from making application for temporary alimony and attorneys’ fees in a subsequent suit for divorce. Bailey v. Bailey, 127 N.C. 474 , 37 S.E. 502, 1900 N.C. LEXIS 111 (1900).

Binding Arbitration as to Spousal Support. —

Since the parties may settle spousal support by agreement, there exists no prohibition to their entering into binding arbitration to settle the issue of spousal support. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

Release and Quitclaim of Property Rights. —

This section allows husband and wife to enter a separation agreement which releases and quitclaims any property rights acquired by marriage, and that a release will bar any later claim on the released property. Such a valid separation agreement is an enforceable contract between husband and wife. Blount v. Blount, 72 N.C. App. 193, 323 S.E.2d 738, 1984 N.C. App. LEXIS 3997 (1984).

A release by a husband of his former right of tenancy by the curtesy in his wife’s lands by properly executed contract with his wife was expressly authorized by this section, with the added provision that such release could be pleaded in bar of any proceeding to recover the rights released. Blankenship v. Blankenship, 234 N.C. 162 , 66 S.E.2d 680, 1951 N.C. LEXIS 422 (1951).

Prior Agreement as Bar to Equitable Distribution. —

When a prior separation agreement fully disposes of the spouses’ property rights arising out of the marriage, it acts as a bar to equitable distribution. Blount v. Blount, 72 N.C. App. 193, 323 S.E.2d 738, 1984 N.C. App. LEXIS 3997 (1984).

A separation agreement which contained no specific references to any real property, but only to personal property, held to have nevertheless fully disposed of the parties’ property rights arising out of the marriage and thus to act as a bar to equitable distribution. Hartman v. Hartman, 80 N.C. App. 452, 343 S.E.2d 11, 1986 N.C. App. LEXIS 2213 (1986).

Separation agreement which released each spouse from the common law rights incident to marriage (dower, curtesy, inheritance, descent, and distribution), as well as “all other rights arising out of the marital relationship in and to any and all property,” fully disposed of the parties’ property rights arising out of the marriage and thus acted as a bar to equitable distribution. Hagler v. Hagler, 319 N.C. 287 , 354 S.E.2d 228, 1987 N.C. LEXIS 1927 (1987).

Agreement as Bar to Pension Rights. —

Separation agreement entered into on August 2, 1982, which contained no reference to defendant-husband’s military pension, but specifically provided that each party was forever barred from any or all rights or claims not therein reserved which arose out of the marital relation and that each released and relinquished all claims or interest in and to all property of the other, whether then owned or subsequently acquired, barred an award to plaintiff-wife under the Equitable Distribution Act of a share in defendant-husband’s military pension; the subsequent amendment of the act effective August 1, 1983, to include military pensions as marital property did not permit plaintiff-wife to avoid the release provisions of the agreement. Morris v. Morris, 79 N.C. App. 386, 339 S.E.2d 424, 1986 N.C. App. LEXIS 2054 (1986).

Husband’s failure to pay his wife money on the day of their marriage as stipulated in a premarital agreement was not a failure to meet a condition precedent and did not invalidate the premarital agreement entered into between the parties; equitable distribution of marital property was therefore inappropriate. Harllee v. Harllee, 151 N.C. App. 40, 565 S.E.2d 678, 2002 N.C. App. LEXIS 687 (2002).

Money Lent to Husband Recoverable. —

In a suit brought by a wife against the administrator of her deceased husband for money “advanced and lent” to him during coverture, where the marriage took place after the adoption of the Constitution of 1868, it was held that the contract between them was not inconsistent with public policy, and was, therefore, valid. George v. High, 85 N.C. 99 , 1881 N.C. LEXIS 212 (1881).

Rent Notes Given Wife by Husband Valid. —

Where a husband occupied his wife’s land for 9 years, during the whole of which period he received the rents therefrom, under an express agreement with his wife to account to her for such rents, and each year gave his wife a note for the rent, it was held that the notes constituted a valid indebtedness on the part of the husband to his wife. Battle v. Mayo, 102 N.C. 413 , 9 S.E. 384, 1889 N.C. LEXIS 47 (1889).

Acts Sufficient to Qualify as an Acknowledgment. —

When defendant and wife signed a separation agreement in front of a notary, the defendant performed acts sufficient to qualify as an acknowledgment under the statute, since no rights of creditors or third parties were involved. Lawson v. Lawson, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

Presumption of Regularity. —

As there was no evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation, and a husband never claimed that he did not sign a separation and property settlement agreement in the present of the notary, the agreement itself should at the very least been accorded a presumption of regularity, and that would preclude the dismissal of the wife’s complaint alleging that the husband failed to perform his obligations under the agreement. Sfreddo v. Hicks, 266 N.C. App. 84, 831 S.E.2d 353, 2019 N.C. App. LEXIS 552 (2019).

Presumption of Regularity. —

Because a husband presented no evidence to rebut the regularity of the notarization of a separation and property settlement agreement, and the wife’s evidence supported the presumption, the trial court erred in concluding as a matter of law that the agreement was void on the ground that it was not properly acknowledged; the husband presented no affidavit and no evidence, and he signed the agreement before the notary. Sfreddo v. Hicks, 266 N.C. App. 84, 831 S.E.2d 353, 2019 N.C. App. LEXIS 552 (2019).

A certificate of acknowledgment may be subsequently affixed to a separation agreement if the agreement was valid under the appropriate statute, no rights of creditors or third parties being involved. Lawson v. Lawson, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

Acknowledgment in Premarital Agreements. —

Since this section requires acknowledgment only during coverture, the period of marriage, it does not require acknowledgment for premarital agreements. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610, 1989 N.C. App. LEXIS 1118 (1989).

The validity of a premarital agreement is not affected by the lack of acknowledgment. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610, 1989 N.C. App. LEXIS 1118 (1989).

Husband’s attorney, who was a notary, could acknowledge property settlement agreements under this section; this section merely provides that persons acknowledging the marital contract must not be a party to the contract. Small v. Small, 93 N.C. App. 614, 379 S.E.2d 273, 1989 N.C. App. LEXIS 378 (1989).

Handwritten agreement which was not acknowledged before a certifying officer as defined in subsection (b) of this section was not binding upon the court, and the court was free to distribute the property, pursuant to G.S. 50-20 . McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95, 1987 N.C. App. LEXIS 3522 (1987), aff'd, 323 N.C. 543 , 374 S.E.2d 376, 1988 N.C. LEXIS 694 (1988).

To impeach a notary’s certification, there must be more than a bare allegation that no acknowledgment occurred, and where plaintiff never asserted that the actual signature on an agreement was other than his own, but suggested only a technical violation of G.S. 52-10.1 , he did not bring forth sufficient evidence to overcome the presumption created in favor of the validity of the acknowledgment. Moore v. Moore, 108 N.C. App. 656, 424 S.E.2d 673, 1993 N.C. App. LEXIS 126 , aff'd, 334 N.C. 684 , 435 S.E.2d 71, 1993 N.C. LEXIS 461 (1993).

Uncertified Agreement Unenforceable. —

When a wife sought to enforce an amendment to a separation agreement, a husband was entitled to summary judgment because the amendment was void ab initio, as (1) the amendment had to be executed before a certifying officer, statutorily and pursuant to the separation agreement, (2) the requirement did not only apply during the parties’ coverture, (3) the document the wife sought to enforce was such an amendment, and (4) nothing showed this requirement was met. Kelley v. Kelley, 252 N.C. App. 467, 798 S.E.2d 771, 2017 N.C. App. LEXIS 223 (2017).

Failure to Make Full Disclosure Held to Invalidate Antenuptial Agreement. —

Where the husband failed to make a full disclosure of his financial status, and that the wife was presented with an agreement drawn by the husband’s attorney which she signed without knowledge of its contents and without seeking independent legal advice, absent any voluntary waiver, especially considering the confidential relationship between prospective spouses, husband’s failure to fully disclose his financial status was grounds for invalidating an antenuptial agreement. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852, 1988 N.C. App. LEXIS 744 (1988).

Resulting Trust Held Established. —

Where the evidence showed that $10,000 check was delivered into the wife’s hands, that it was made out to her maiden name, that she deposited it in her separate bank account before marriage, and that the husband testified that the funds were the wife’s to do with as she pleased, and she gave it to her husband to purchase a condominium, a $10,000 resulting trust was properly established in the wife’s favor upon divorce. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852, 1988 N.C. App. LEXIS 744 (1988).

Order Holding Agreement for Post-Separation Support Enforceable was Error. —

Trial court erred by holding that a support agreement was governed by G.S. 52-10 and was enforceable because the agreement was made while the parties were separated, and concerned post-separation spousal support; thus, it was a separation agreement for spousal support, and, because it was uncertified, it failed to comply with G.S. 52-10.1 and was unenforceable. Sluder v. Sluder, 198 N.C. App. 401, 679 S.E.2d 435, 2009 N.C. App. LEXIS 1166 (2009).

§ 52-10.1. Separation agreements.

Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b) . Such certifying officer must not be a party to the contract. This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a separation agreement between such husband and wife.

History. 1965, c. 803; 1977, c. 375, s. 3.

Cross References.

As to distribution by court of marital property upon divorce, see G.S. 50-20 and 50-21.

As to antenuptial contracts, see G.S. 52B-1 et seq.

Editor’s Note.

The act inserting this section designated it as G.S. 52-13 .1, to follow former G.S. 52-13 in Article 1 of Chapter 52 prior to the repeal and revision of that Chapter by Session Laws 1965, c. 878. This section was redesignated as G.S. 52-10.1 , since the provisions of present G.S. 52-10 are similar to those of former G.S. 52-13.

Legal Periodicals.

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

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

For note on enforcement of separation agreements by specific performance, see 16 Wake Forest L. Rev. 117 (1980).

For note on voiding separation agreements by isolated acts of sexual intercourse, see 16 Wake Forest L. Rev. 137 (1980).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the state in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For 1984 survey, “Property Settlement or Separation Agreement: Perpetuating the Confusion,” see 63 N.C.L. Rev. 1166 (1985).

For note on contractual agreements as a means of avoiding equitable distribution, in light of Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984), see 21 Wake Forest L. Rev. 213 (1985).

For note on post-separation sexual intercourse precluding enforcement of agreement requiring parties to live separate and apart, see 11 Campbell L. Rev. 73 (1988).

For article, “Semantics as Jurisprudence: The Elevation of Form Over Substance in the Treatment of Separation Agreements in North Carolina,” see 69 N.C.L. Rev. 319 (1991).

For survey on the award of attorneys’ fees for breach of a separation agreement, see 70 N.C.L. Rev. 2016 (1992).

For note, “The Diploma Dilemma: An Inequitable Result Under North Carolina’s Equitable Distribution Statute — Kuder v. Schroeder,” see 17 Campbell L. Rev. 361 (1995).

For article, “Bromhal v. Stott: Revisiting the Court’s Role in Separation Agreements in the Context of Attorneys’ Fees,” see 74 N.C.L. Rev. 2151 (1996).

For case note, “Nunn v. Allen, Living Separate and Apart in North Carolina, Separation Agreements, Sex, the Meaning of Unmarried, and Liability of Third Parties,” 25 N.C. Cent. L.J. 242 (2003).

For article, “The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers,” see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

Construction With Other Sections. —

The validity of a separation agreement as it related to a waiver of alimony was not to be judged in the context of G.S. 52-10 , but executed pursuant to this section. Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312, 1999 N.C. App. LEXIS 1054 (1999).

G.S. 52-10 and this section are distinguishable in that a separation agreement may affect support rights whereas G.S. 52-10 refers only to “rights . . . in property”; further, as indicated by the terms requiring formalities for contracts entered into “during coverture,” a contract under G.S. 52-10 may be entered into at any time during marriage, not only in contemplation of separation or divorce. Williams v. Williams, 120 N.C. App. 707, 463 S.E.2d 815, 1995 N.C. App. LEXIS 942 (1995), aff'd, 343 N.C. 299 , 469 S.E.2d 553, 1996 N.C. LEXIS 264 (1996).

Cases applying G.S. 52-10.1 and G.S. 52-10.2 are instructive in determining what constitutes marital rights, duties, and obligations under G.S. 50-16.9 . Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925, 2004 N.C. App. LEXIS 1511 (2004).

Separation Agreements Binding. —

Under this section separation agreements are binding in all respects so long as they are not inconsistent with public policy and parties may, in settling disputes, agree to the payment of attorney’s fees. Bromhal v. Stott, 116 N.C. App. 250, 447 S.E.2d 481, 1994 N.C. App. LEXIS 904 (1994), aff'd, 341 N.C. 702 , 462 S.E.2d 219, 1995 N.C. LEXIS 524 (1995).

Trial court did not err in denying the husband’s motion for summary judgment arguing that the wife’s cohabitation was a bar to the enforcement of the alimony provision of the parties’ separation and property settlement agreement and arguing that the agreement was void as against public policy because the parties’ agreement provided for termination only upon the husband’s death, the wife’s remarriage, or the wife’s death, but not upon her cohabitation with another individual; G.S. 50-16.9 only reflected the public policy regarding court ordered alimony or postseparation support; and G.S. 50-16.9 was not intended to interfere with the freedom of the parties to agree to terms for alimony that was purely contractual. Patterson v. Patterson, 242 N.C. App. 114, 774 S.E.2d 860, 2015 N.C. App. LEXIS 570 (2015).

Parties May Enter Agreement to Settle Question of Alimony. —

Both parties to a divorce may enter into an agreement to settle the question of alimony, and the terms of the agreement are binding and may be modified only with the consent of both parties. Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, 1991 N.C. App. LEXIS 493 (1991).

Agreement Did Not Waive Alimony Rights. —

Defendant’s execution of a separation agreement which stated that it was executed with “the express understanding” and “in full satisfaction of all obligations” did not constitute an express waiver of her alimony rights within the meaning of this section or G.S. 50-16.6 where the preamble to the agreement referred to G.S. 50-20 , an equitable distribution statute, thus excluding issues of spousal support. Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312, 1999 N.C. App. LEXIS 1054 (1999).

No Waiver of a Husband’s Right to Assert a Criminal Conversation Claim. —

Assuming that a provision in a separation agreement was intended by the husband and the wife to address their right to exclusive sexual intercourse with the other, the provision related only to the spouses’ rights against each other, and, as a matter of law, the provision did not waive the parties’ rights, with respect to third parties, for purposes of a criminal conversation claim. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35, 2002 N.C. App. LEXIS 1522 (2002).

Both Parents Have Duty to Support Children. —

It is the policy of this State that both parents have a duty to support their minor children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

G.S. 52-10 and G.S. 52-10.1 were enacted without providing women any extra protection not offered to men; therefore, a separation agreement should be viewed today like any other bargained-for exchange between parties who are presumably on equal footing. Knight v. Knight, 76 N.C. App. 395, 333 S.E.2d 331, 1985 N.C. App. LEXIS 3877 (1985).

Duty of Support May Be Discharged under Separation Agreement. —

North Carolina law has long recognized that the husband’s (supporting spouse’s) duty of support may be discharged by a valid separation agreement between the spouses under which fixed benefits are provided the wife (dependent spouse) in consideration of the discharge. To be valid, such a discharge of support agreement must (1) be made between spouses either actually separated or intending immediately to separate; and (2) be executed in accordance with statutory formality requirements. Gray v. Snyder, 704 F.2d 709, 1983 U.S. App. LEXIS 29151 (4th Cir. 1983).

When examining whether both parties freely entered into separation agreement, trial courts should use considerable care because contracts between husbands and wives are special agreements. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306, 1990 N.C. App. LEXIS 1039 (1990).

This section requires that a separation agreement be in writing and be acknowledged by both parties before a certifying officer, not a party to the contract, as defined by statute. Greene v. Greene, 77 N.C. App. 821, 336 S.E.2d 430, 1985 N.C. App. LEXIS 4370 (1985).

To be valid a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Relationship between husband and wife is the most confidential of all relationships, and transactions between them, to be valid, must be fair and reasonable. Separation agreement must have been entered into without coercion. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306, 1990 N.C. App. LEXIS 1039 (1990).

Actual Fraud Need Not Be Shown. —

Courts have thrown cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably. To warrant equity’s intervention, no actual fraud need to be shown, for relief will be granted if settlement is manifestly unfair to spouse because of other’s overreaching. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306, 1990 N.C. App. LEXIS 1039 (1990).

There was nothing inconsistent with public policy in an indemnity clause within a separation agreement where the clause read: “If either party hereto for any reason fails to perform his or her financial or other obligations to the other party or their child, and as a result thereof incurs any expense, including reasonable attorney’s fees, to collect the same or otherwise enforce his or her rights with respect thereto, the defaulting party shall indemnify and hold the other harmless from any such expense.” Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, 1991 N.C. App. LEXIS 493 (1991).

Duty to Pay Child Support Not Dependent upon Compliance with Other Provisions. —

A spouse’s obligation under the terms of a separation agreement to pay child support is not dependent upon plaintiff’s compliance with visitation, non-harassment, or non-cohabitation provisions, or other provisions unrelated to the financial support of the children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Provisions Dependent upon Compliance with Other Provisions in Agreement. —

Whether a spouse’s right to alimony or maintenance and support is dependent upon that spouse’s compliance with other provisions in the separation agreement is determined by the construction of the contract between the parties. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Where a separation agreement is silent on the question of whether the provisions for alimony and visitation are dependent of each other, the trial court must determine whether defendant’s payment of alimony is dependent upon the plaintiff’s complying with the provisions of the agreement dealing with visitation, non-cohabitation and non-harassment. The burden of proof of integration of the provisions is on the defendant. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Breach of Provisions. —

If the trial court finds provisions in a separation agreement relating to alimony and visitation are dependent, the trial court must then determine whether plaintiff breached the pertinent provisions, and, if so, whether those breaches were of a substantial nature. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Modification of Separation Agreement Must Be Pursuant to This Section. —

In North Carolina, the modification of an original separation agreement must be made pursuant to the formalities and requirements of this section. Greene v. Greene, 77 N.C. App. 821, 336 S.E.2d 430, 1985 N.C. App. LEXIS 4370 (1985).

An attempt to orally modify a separation agreement would fail to meet the formalities and requirements of this section. Therefore, the findings of the trial court would not support, much less require, a conclusion that the parties modified their separation agreement when plaintiff told defendant, upon learning of his remarriage, that she was making him a wedding present of the payments under the agreement. Greene v. Greene, 77 N.C. App. 821, 336 S.E.2d 430, 1985 N.C. App. LEXIS 4370 (1985).

Equitable Distribution Barred by Agreement. —

Separation agreement which released each spouse from the common law rights incident to marriage (dower, curtesy, inheritance, descent, and distribution), as well as “all other rights arising out of the marital relationship in and to any and all property,” fully disposed of the parties’ property rights arising out of the marriage and thus acted as a bar to equitable distribution. Hagler v. Hagler, 319 N.C. 287 , 354 S.E.2d 228, 1987 N.C. LEXIS 1927 (1987).

Agreement Was Valid Waiver of Property Rights. —

In response to plaintiff’s complaint for divorce, equitable distribution and alimony, defendant alleged a valid separation/property settlement agreement waived all of plaintiff’s marital rights to equitable distribution and alimony and requested the agreement be incorporated in the court’s final judgment; as valid contractual waivers of these rights are enforceable in this State, defendant’s allegation of the agreement was properly characterized as a plea in bar to plaintiff’s complaint. Garris v. Garris, 92 N.C. App. 467, 374 S.E.2d 638, 1988 N.C. App. LEXIS 1077 (1988).

Agreement Not Signed by Wife Was Invalid and Did Not Bar Equitable Distribution. —

Having determined that a separation agreement was not valid and enforceable under North Carolina law because only the husband acknowledged the execution of the separation agreement before the certifying officer and further, that the parties intended North Carolina law to govern, although the agreement was executed in Maryland, the Court of Appeals of North Carolina held that the agreement was invalid and did not bar the wife’s claim for equitable distribution under G.S. 50-21 . Morton v. Morton, 76 N.C. App. 295, 332 S.E.2d 736, 1985 N.C. App. LEXIS 3874 (1985).

Agreement Held Not Unconscionable. —

Wife failed to show agreements were unconscionable where evidence in record plainly showed that she considered the agreements equitable when she entered into them and knowingly chose to bring an end to the continuing aggravation and stress associated with the outstanding equitable distribution claim. Hill v. Hill, 94 N.C. App. 474, 380 S.E.2d 540, 1989 N.C. App. LEXIS 600 (1989).

Agreements did not involve constructive fraud where the fiduciary obligation normally existing between parties to a marriage had long been extinguished; not only were the parties divorced before the agreements were entered, but each had employed independent counsel to represent them in the equitable distribution action and the settlement negotiations, and through counsel, they hammered out the terms of property settlement. Hill v. Hill, 94 N.C. App. 474, 380 S.E.2d 540, 1989 N.C. App. LEXIS 600 (1989).

Acts Sufficient to Qualify as an Acknowledgment. —

When defendant and wife signed a separation agreement in front of a notary the defendant performed acts sufficient to qualify as an acknowledgment under the statute, since no rights of creditors or third parties were involved. Lawson v. Lawson, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

A certificate of acknowledgment may be subsequently affixed to a separation agreement if the agreement was valid under the appropriate statute, no rights of creditors or third parties being involved. Lawson v. Lawson, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

A wife’s acknowledgment of a separation agreement was fatally defective under former G.S. 52-6 where there was no private examination of the wife and thus no finding as to whether the agreement was unreasonable or injurious to the wife, and where the acknowledgment was certified by a Judge Advocate in the Marine Corps who did not qualify as a “certifying officer” under former G.S. 52-6 (c) because his position was not that of an “equivalent or corresponding officer” of the jurisdiction where the examination and acknowledgment were to be made; and the omission of the private examination and the lack of authority on the part of the certifying officer precluded the use of curative statutes, G.S. 52-8 and 47-81.2, to validate the agreement. DeJaager v. DeJaager, 47 N.C. App. 452, 267 S.E.2d 399, 1980 N.C. App. LEXIS 3142 (1980).

Presumption of Validity of Acknowledgment. —

To impeach a notary’s certification, there must be more than a bare allegation that no acknowledgment occurred, and where plaintiff never asserted that the actual signature on an agreement was other than his own, but suggested only a technical violation of this section, he did not bring forth sufficient evidence to overcome the presumption created in favor of the validity of the acknowledgment. Moore v. Moore, 108 N.C. App. 656, 424 S.E.2d 673, 1993 N.C. App. LEXIS 126 , aff'd, 334 N.C. 684 , 435 S.E.2d 71, 1993 N.C. LEXIS 461 (1993).

Because a husband presented no evidence to rebut the regularity of the notarization of a separation and property settlement agreement, and the wife’s evidence supported the presumption, the trial court erred in concluding as a matter of law that the agreement was void on the ground that it was not properly acknowledged; the husband presented no affidavit and no evidence, and he signed the agreement before the notary. Sfreddo v. Hicks, 266 N.C. App. 84, 831 S.E.2d 353, 2019 N.C. App. LEXIS 552 (2019).

As there was no evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation, and a husband never claimed that he did not sign a separation and property settlement agreement in the present of the notary, the agreement itself should at the very least been accorded a presumption of regularity, and that would preclude the dismissal of the wife’s complaint alleging that the husband failed to perform his obligations under the agreement. Sfreddo v. Hicks, 266 N.C. App. 84, 831 S.E.2d 353, 2019 N.C. App. LEXIS 552 (2019).

Proper notary. —

Parties’ separation agreement not set aside where the court (1) rejected the husband’s claim of fraud, because the existence of a relationship of confidence and trust did not operate as an exception to the general rule that fraud could not be premised upon a misrepresentation of law, (2) found that since the parties’ distribution scheme differed from that established by North Carolina law constituted merely a bare mistake of law, the court rejected the husband’s request to reform the agreement, and (3) found that contrary to the husband’s assertion, the record contained a copy of the agreement bearing a notary stamp for the signatures of both the wife and husband. Dalton v. Dalton, 164 N.C. App. 584, 596 S.E.2d 331, 2004 N.C. App. LEXIS 978 (2004).

Attorney’s Fees. —

The public policy of this State encourages settlement agreements and supports the inclusion of a provision for the recovery of attorney’s fees in settlement agreements. Bromhal v. Stott, 341 N.C. 702 , 462 S.E.2d 219, 1995 N.C. LEXIS 524 (1995).

Provision for recovery of attorney’s fees in separation agreement was not inconsistent with public policy and was legal, valid, and binding under this section. Bromhal v. Stott, 341 N.C. 702 , 462 S.E.2d 219, 1995 N.C. LEXIS 524 (1995).

Agreement as to Alimony. —

Parties to a divorce may enter into a valid agreement settling the question of alimony, and unless the court then orders alimony to be paid, the terms of the agreement are binding and can only be modified by the consent of both parties. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

Renunciation under Separation Agreement. —

Where a husband executed a will devising and bequeathing all his property to his wife, and the spouses thereafter entered into a separation agreement in which each waived and renounced all rights under any previously executed will of the other, and the husband subsequently died without having revoked or modified his will, the separation agreement constituted a valid renunciation which adeemed the devise and bequest to the wife. Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E.2d 924, 1983 N.C. App. LEXIS 2925 (1983).

Breach of Separation Agreement. —

Breach by husband of a part of a separation agreement requiring him to pay the difference in the federal and State income tax that wife was required to pay by virtue of being unable to make a deduction for attorneys’ fees was not the breach of a personal contract provision which would allow recovery of special damages for mental anguish. Stanback v. Stanback, 37 N.C. App. 324, 246 S.E.2d 74, 1978 N.C. App. LEXIS 2743 (1978), aff'd in part and rev'd in part, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

Enforcement of Separation Agreement by Specific Performance. —

A separation agreement that has not been incorporated into a divorce judgment may be equitably enforced by an order of specific performance. Harris v. Harris, 50 N.C. App. 305, 274 S.E.2d 489, 1981 N.C. App. LEXIS 2122 (1981).

A separation agreement not incorporated into a final divorce decree may be enforced through the equitable remedy of specific performance. Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, 1991 N.C. App. LEXIS 493 (1991).

It was no error to order specific performance of alimony because (1) the obligation was based on the parties’ unincorporated separation agreement, and (2) an obligor’s sufficient income was found, and (3) sufficient findings supported a remand order. Lasecki v. Lasecki, 257 N.C. App. 24, 809 S.E.2d 296, 2017 N.C. App. LEXIS 1054 (2017).

Defendant Held Able to Specifically Perform Agreement. —

Where defendant’s current wife’s background was in the administrative sphere of her company, and the consulting work performed by defendant was indispensable to that company, the court was incorrect in concluding that the company was a joint venture for defendant and his wife and that defendant chose not to receive a salary in order to depress his income; therefore, the evidence in the record supported the conclusion that defendant was financially able to specifically perform the separation agreement. Brandt v. Brandt, 92 N.C. App. 438, 374 S.E.2d 663, 1988 N.C. App. LEXIS 1072 (1988), aff'd, 325 N.C. 429 , 383 S.E.2d 656, 1989 N.C. LEXIS 477 (1989).

As to attack on deed of separation by married woman, see Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Until deed of separation is rescinded, defendant cannot attack the legality of the separation or obtain alimony from plaintiff. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Binding Arbitration as to Spousal Support. —

Since the parties may settle spousal support by agreement, there exists no prohibition to their entering into binding arbitration to settle the issue of spousal support. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

Separation agreements may not by their own terms promote objectives which are offensive to public policy. Sethness v. Sethness, 62 N.C. App. 676, 303 S.E.2d 424, 1983 N.C. App. LEXIS 2981 (1983).

Because a separation agreement does not specifically prohibit “illicit intercourse” and cohabitation and may, by implication, even condone such acts, it does not therefore follow that the agreement promotes such acts. Whether the silence of a separation agreement on such issues renders it void as against public policy is a matter of legislative, not judicial, determination. Sethness v. Sethness, 62 N.C. App. 676, 303 S.E.2d 424, 1983 N.C. App. LEXIS 2981 (1983).

Sufficient Consideration for Separation Agreement. —

Separation agreement was not void due to a lack of consideration because the parties acknowledged there was sufficient consideration at the time of its execution as both parties received items of value and benefits accorded to them through the execution of the contract. The separation agreement established benefits and rights for both parties, including language giving one spouse rights to child custody and visitation for both minor children, property settlement and distribution, and insurance policy benefits. Johnson v. Johnson, 259 N.C. App. 823, 817 S.E.2d 466, 2018 N.C. App. LEXIS 515 (2018).

Separation Agreement Not Shown. —

Where document recited that on the date of execution, the parties were “living separate and apart”, however, it further provided that the parties may desire to resume cohabitation in an effort to reconcile and that the parties were considering the resumption of cohabitation, the express and unambiguous language of the agreement declared that the parties were not contemplating living “separate and apart forever.” Thus, the agreement was not a separation agreement under this section. Williams v. Williams, 120 N.C. App. 707, 463 S.E.2d 815, 1995 N.C. App. LEXIS 942 (1995), aff'd, 343 N.C. 299 , 469 S.E.2d 553, 1996 N.C. LEXIS 264 (1996).

Trial court erred in granting summary judgment to the husband as to the validity of a separation agreement where the parties had signed different versions, and the husband’s revisions were substantive changes, not clerical. Raymond v. Raymond, 257 N.C. App. 700, 811 S.E.2d 168, 2018 N.C. App. LEXIS 121 (2018).

Failure of Court to Follow Dictates of Agreement. —

Although signed by the parties and the court and filed with the clerk of the court, a custody and child support agreement was vacated because the trial court did not read its terms to the parties and inquire into the parties’ understanding of and voluntary consent to the terms, as provided in the agreement. Tevepaugh v. Tevepaugh, 135 N.C. App. 489, 521 S.E.2d 117, 1999 N.C. App. LEXIS 1149 (1999).

Summary Judgment Held Improper. —

Plaintiff’s affidavit stated she was forced to sign the separation agreement under duress and coercion, and defendant denied allegation, therefore, taking plaintiff’s affidavit as true, there was a genuine issue of material fact on question of duress and coercion concerning the separation agreement, and grant of summary judgment was error. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306, 1990 N.C. App. LEXIS 1039 (1990).

Where separation agreement provided for percentage adjustments in the amount of alimony and child support based on the “Consumer Price Index for Consumer Goods,” but did not specify which “Consumer Price Index,” trial court erred by granting summary judgment on amount of arrearages. The court must decide what index the parties intended when they signed the agreement. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

The law in North Carolina strongly favors enforcing contracts as written, wherever they may be entered into. Policy does not favor allowing spouses to escape their lawful support obligations simply by crossing state lines. White v. Graham, 72 N.C. App. 436, 325 S.E.2d 497, 1985 N.C. App. LEXIS 3102 (1985).

Uncertifed Agreement Unenforceable. —

Trial court erred by holding that a support agreement was governed by G.S. 52-10 and was enforceable because the agreement was made while the parties were separated, and concerned post-separation spousal support; thus, it was a separation agreement for spousal support, and, because it was uncertified, it failed to comply with G.S. 52-10.1 and was unenforceable. Sluder v. Sluder, 198 N.C. App. 401, 679 S.E.2d 435, 2009 N.C. App. LEXIS 1166 (2009).

When a wife sought to enforce an amendment to a separation agreement, a husband was entitled to summary judgment because the amendment was void ab initio, as (1) the amendment had to be executed before a certifying officer, statutorily and pursuant to the separation agreement, (2) the requirement did not only apply during the parties’ coverture, (3) the document the wife sought to enforce was such an amendment, and (4) nothing showed this requirement was met. Kelley v. Kelley, 252 N.C. App. 467, 798 S.E.2d 771, 2017 N.C. App. LEXIS 223 (2017).

Court Did Not Abuse Discretion in Declining to Reduce Child Support Obligation Arising from Unincorporated Separation Agreement. —

It was not an abuse of discretion to decline to reduce a father’s child support obligation for a prior period because (1) the obligation arose from an unincorporated separation agreement, and (2) contractual damages for the father’s failure to pay support could not be reduced. Lasecki v. Lasecki, 257 N.C. App. 24, 809 S.E.2d 296, 2017 N.C. App. LEXIS 1054 (2017).

§ 52-10.2. Resumption of marital relations defined.

“Resumption of marital relations” shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.

History. 1987, c. 664, s. 1.

Legal Periodicals.

For note on post-separation sexual intercourse precluding enforcement of agreement requiring parties to live separate and apart, see 11 Campbell L. Rev. 73 (1988).

CASE NOTES

Construction With Other Sections. —

Cases applying G.S. 52-10.1 and G.S. 52-10.2 are instructive in determining what constitutes marital rights, duties, and obligations under G.S. 50-16.9 . Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925, 2004 N.C. App. LEXIS 1511 (2004).

During a separation, the surviving spouse and the decedent prepared a separation agreement containing a provision wherein they waived the right to inheritance rights from each others’ estates, but the couple thereafter reconciled and lived together until the decedent’s death; thus, the surviving spouse had a right to claim an elective share under G.S. 30-3.1 because the waiver of inheritance rights was rescinded and canceled under G.S. 52-10.2 by the reconciliation of the decedent and the surviving spouse. In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264, 2007 N.C. App. LEXIS 1046 (2007).

There are two lines of cases regarding resumption of marital relations: those which present the question of whether the parties hold themselves out as man and wife as a matter of law, and those involving conflicting evidence such that mutual intent becomes an essential element; these two lines of cases establish two alternative methods by which a trial court may find that separated spouses have reconciled. Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186, 1992 N.C. App. LEXIS 692 (1992).

Section Not Applied Retroactively. —

Testimony of plaintiff and defendant alike showed that the parties had sexual intercourse several times between the execution of Separation Agreement and Property Settlement and June 1, 1985, and under the law that existed when the acts of intercourse occurred, they rendered null and void the unperformed obligations of the agreement; furthermore, plaintiff’s position was not aided by this section, as that enactment became effective October 1, 1987, more than two years after the occurrences involved. Moser v. Moser, 96 N.C. App. 273, 385 S.E.2d 160, 1989 N.C. App. LEXIS 946 (1989).

Future, But Not Existing, Alimony Obligations Cease Upon Reconciliation. —

When the parties resumed marital relations, appellant’s obligations to pay alimony in the future ceased. His duty under the consent judgment to pay alimony up to the date of reconciliation, however, as an executed portion of the consent judgment, remained enforceable through the court’s contempt power. Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186, 1992 N.C. App. LEXIS 692 (1992).

Reconciliation Shown. —

Although they had been separated and filed for divorced, reconciliation was established because the wife provided the husband with medical care at a hospital and at his home prior to his death, they told friends that they had reconciled, and they behaved as if they were reconciled, including sharing a marital bed. Casella v. Alden, 200 N.C. App. 24, 682 S.E.2d 455, 2009 N.C. App. LEXIS 1571 (2009).

Reconciliation Not Shown. —

Four hours on each of six evenings spent together in the former marital home eating dinner and visiting with the parties’ children in combination with three or four isolated acts of sexual intercourse did not constitute reconciliation as a matter of law. Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E.2d 802, 1996 N.C. App. LEXIS 936 (1996).

Although there was evidence to the contrary, the competent evidence supported a trial court’s finding that the parties did not reconcile after the wife moved back into the marital residence after signing a separation agreement. Because the parties did not reconcile, the appellate court did not reach the wife’s argument that the reconciliation clause in the separation agreement was void under public policy as, for the clause to have been implemented, reconciliation would have had to occur. Johnson v. Johnson, 259 N.C. App. 823, 817 S.E.2d 466, 2018 N.C. App. LEXIS 515 (2018).

§ 52-11. Antenuptial contracts and torts.

The liability of a married person for any debts owing, or contracts made or damages incurred before marriage shall not be impaired or altered by such marriage. No person shall by marriage incur any liability for any debts owing, or contracts made, or for wrongs done by his or her spouse before the marriage.

History. 1871-2, c. 193, ss. 13, 14; Code, ss. 1822, 1823; Rev., ss. 2101, 2106; C.S., s. 2517; 1965, c. 878, s. 1.

Editor’s Note.

Former § 52-11 was repealed by Session Laws 1943, c. 543. The provisions of present G.S. 52-11 are similar to those of former § 52-14.

Legal Periodicals.

For case law survey on tort law, see 43 N.C.L. Rev. 906 (1965).

For comment on enforceability of marital contracts, see 47 N.C.L. Rev. 816 (1969).

For article, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” see 18 Campbell L. Rev. 203 (1996).

CASE NOTES

Wife May Appoint Husband as Agent. —

A wife may appoint her husband to act as her agent to settle her antenuptial debts in the same manner as one sui juris may appoint an agent, and compliance with the requirements of former G.S. 52-6 was not necessary. Stout v. Perry, 152 N.C. 312 , 67 S.E. 757, 1910 N.C. LEXIS 264 (1910).

Where prior to marriage wife incurs liability for negligent injury to husband, the subsequent marriage does not affect her liability. Shirley v. Ayers, 201 N.C. 51 , 158 S.E. 840, 1931 N.C. LEXIS 178 (1931).

§ 52-12. Postnuptial crimes and torts.

No married person shall be liable for damages accruing from any tort committed by his or her spouse, or for any costs or fines incurred in any criminal proceeding against such spouse.

History. 1871-2, c. 193, s. 25; Code, s. 1833; Rev., s. 2105; C.S., s. 2518; 1921, c. 102; 1965, c. 878, s. 1.

Editor’s Note.

Provisions similar to former G.S. 52-12 were contained in the G.S. 52-6 repealed by Session Laws 1977, c. 375, s. 1. The provisions of present G.S. 52-12 are similar to those of former G.S. 52-15.

Legal Periodicals.

For article, “The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do,” see 85 N.C.L. Rev. 1761 (2007).

CASE NOTES

Common Law. —

At common law, husband was liable for the tort of his wife, although committed without his knowledge or consent and in his absence, and although husband and wife were living separate at the time, on the ground that as her legal existence was incorporated in that of her husband, she could not be sued alone, and if the husband was protected from responsibility the injured party would be without redress. Roberts v. Lisenbee, 86 N.C. 136 , 1882 N.C. LEXIS 161 (1882).

For cases decided under former law, see Roberts v. Lisenbee, 86 N.C. 136 , 1882 N.C. LEXIS 161 (1882); Presnell v. Moore, 120 N.C. 390 , 27 S.E. 27, 1897 N.C. LEXIS 83 (1897); Brittingham v. Stadiem, 151 N.C. 299 , 66 S.E. 128, 1909 N.C. LEXIS 256 (1909); Young v. Newsome, 180 N.C. 315 , 104 S.E. 660, 1920 N.C. LEXIS 87 (1920).

§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.

1. No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent.
2. An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.
3. A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.

History. 2009-400, s. 1.

Legal Periodicals.

For note, “The Questionable Constitutionality of Curtailing Cuckolding: Alienation of Affection and Criminal Conversation Torts,” see 65 Duke L.J. 755 (2016).

For article, “If Loving You is Wrong….Can First Amendment Protection Be Right? Alienation of Affection, Criminal Conversation, and the Right to Free Speech,” see 38 N.C. Cent. L. Rev. 93 (2016).

CASE NOTES

Alienation of Affection And Criminal Conversation Facially Valid. —

Common law causes of action for alienation of affection and criminal conversation are facially valid because they further the State’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broke; when spouses agree to an “open” marriage that permits extra-marital intimacy or sex, that is a defense to the claims, as is physical separation of the spouses when either intends for the separation to remain permanent. Malecek v. Williams, 255 N.C. App. 300, 804 S.E.2d 592, 2017 N.C. App. LEXIS 739 , dismissed, 370 N.C. 381 , 807 S.E.2d 574, 2017 N.C. LEXIS 986 (2017).

Post-Separation Conduct. —

Trial court properly awarded the plaintiff $65,000 for criminal conversation and alienation of affection because, while the defendant claimed not to know who the father of her child was, the trial court found otherwise based on evidence including the plaintiff’s testimony and inconsistencies in the defendant’s testimony, evidence of post-separation conduct between the defendant and the husband corroborated evidence of their pre-separation conduct, including allowing a reasonable inference that the defendant was the unidentified woman who accompanied the husband to a hotel on one occasion and that she engaged in sexual intercourse with him on that occasion, a few weeks before he and the plaintiff separated. Rodriguez v. Lemus, 257 N.C. App. 493, 810 S.E.2d 1, 2018 N.C. App. LEXIS 40 , cert. dismissed, 371 N.C. 447 , 817 S.E.2d 201, 2018 N.C. LEXIS 633 (2018).

Relief from Automatic Stay in Bankruptcy Cases. —

Bankruptcy court granted a husband’s motion seeking relief under 11 U.S.C.S. § 362(d)(1) so he could proceed with a lawsuit he filed in a North Carolina court which alleged that a Chapter 13 debtor committed alienation of affection and criminal conversation when he had an affair with the husband’s wife. Alienation of affection and criminal conversation were valid claims under G.S. 52-13 , the bankruptcy court did not have jurisdiction to hear the husband’s state-law claims absent consent by both parties and maybe not even then, the State court was a better forum than the bankruptcy court for resolving the debtor’s claim that claims alleging alienation of affection and criminal conversation under North Carolina law were unconstitutional, the parties had already filed their pleadings and conducted discovery in the husband’s case in State court, and the debtor’s bankruptcy estate could be protected by imposing a requirement that the husband seek enforcement of any judgment he obtained in State court through the bankruptcy court. In re Horn, 2012 Bankr. LEXIS 2486 (Bankr. M.D.N.C. May 31, 2012).