North Carolina Department of Justice
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REPLY TO: Ann Reed Administrative Div. (9l9) 716-6800 FAX (919) 716-6755

October 9, 2001

Ann Shaw Randolph County Register of Deeds

P.O. Box 4066 Asheboro, , North Carolina 27204-4066

Re: Advisory Opinion: Validity of Marriage of Underage Persons; Session Law 2001-62,

N.C.G.S. §51-1, 2, 2A, 3 and 16

Dear Ms. Shaw:

You request our opinion concerning the validity of certain marriages of underage persons that took place on or after October 1, 2001, when amendments to Chapter 51 of the General Statutes became effective.

N.C.G.S. §51-2, as amended by Session Law 2001-62, sets out new age requirements for a valid marriage in North Carolina. Before October 1, 2001, an unmarried female who was more than 12 years old but less than 16 years old who was pregnant or had given birth could legally marry as long as she had the appropriate consent. Beginning on that date, however, the minimum age at which a female who is pregnant or has given birth could marry was raised to 14.

Your first question is whether a pregnant female who is less than 14 and who obtained a marriage license before October 1, 2001, may lawfully marry after that date. You pointed out in our telephone conversation that pursuant to N.C.G.S. §51-16 marriage licenses issued before October 1, 2001, contain the following language: “[Y]ou are hereby authorized, at any time within 60 days from the date hereof, to celebrate the proposed marriage at any place within the said county.” [Emphasis is ours.]

While we can find no case law directly addressing your question, it is our opinion that the new age requirements apply to all marriages solemnized on or after October 1, 2001, even those for which licenses were issued before that date. A marriage is valid in North Carolina only if it complies with the pre-requisites set out in N.C.G.S. §51-1. Essentially, that statute requires that a male and female person, who may lawfully marry, must present themselves before an ordained minister or magistrate, who must declare that they are husband and wife. It is true that the State also requires the licensing of marriages, but a marriage takes place upon the minister’s or magistrate’s declaration and not when the license is issued, and compliance with the licensing requirements is not essential to the validity of a marriage. In fact, our courts have specifically held that the failure to procure a marriage license will not invalidate an otherwise valid marriage. State v. Robbins, 28 N.C. 23 (1845), State v. Parker, 106 N.C. 711, 11 S.E. 2d 517 (1890).

Ann Shaw Page 2 October 9, 2001

Given our opinion regarding the applicability of the new age requirements, it is important to note that, pursuant to N.C.G.S. §51-3, a marriage of an underage party that otherwise complies with the law is merely voidable and not void, “thus rendering the marriage valid until it has been declared void by a court of competent jurisdiction in an action directly attacking the validity of the marriage.” Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929). Furthermore, “it may be doubted if such marriage can be declared invalid when the parties have ratified it by cohabitation after arriving at the age of consent.” State v. Parker, supra, Sawyer v. Slack, supra.

Your second question relates to the new requirement that a 14/15 year old must obtain a court order before he or she can legally marry. You ask whether you must also require parental consent for a 16/17 year old marrying a 14/15 year old who has complied with all the requirements regarding a court order set out in N.C.G.S. §51-2A.

N.C.G.S. §51-2 provides that a person who is over 16 years of age and under 18 years of age may marry, and the register of deeds may issue him or her a license upon the filing of a written consent from the parent or guardian of the minor. (This written consent is not required for minors emancipated under Article 35 of Chapter 7B of the General Statutes.) N.C.G.S. §51-2A provides that a 14 or 15 year old female who is pregnant or has given birth or the 14 or 15 year old putative father of a child or an unborn child must obtain a court order from the district court in order to marry. Before the court can issue such an order, it must consider certain factors, all of which are related to the best interests of the 14/15 year old. The marriage of a 16/17 year old, even where a pregnancy is involved, is not subject to court approval. The requirements of these two statutes are therefore independent, and when a 14/15 year old is marrying a 16/17 year old, the register of deeds must require a court order from the 14/15 year old and the appropriate consent from the 16/17 year old.

We trust that this advisory opinion will be helpful to registers of deeds as they carry out their duties under Chapter 51 of the General Statutes.

Yours truly,

Ann Reed Senior Deputy Attorney General