July 15, 1987
Subject:
Equitable Distribution; Constitution of North Carolina, Article X, Section 4
Requested By:
The Honorable Henson P. Barnes North Carolina Senate
Question:
Does Article X, Section 4 of the Constitution of North Carolina require that an equitable distribution of property must follow a decree of absolute divorce?
Conclusion:
No. The requirement that an equitable distribution of property must follow a decree of absolute divorce is a statutory requirement, not a constitutional requirement.
G.S. 50-21(a) provides in pertinent part: "Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce. . . . The equitable distribution may not precede a decree of absolute divorce." The question we have been asked is whether the requirement that an equitable distribution must follow a decree of absolute divorce is purely statutory or whether it is mandated by the language of Article X, Section 4 of the Constitution of North Carolina.
Article X, Section 4 of the Constitution of North Carolina provides in pertinent part: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed and conveyed by her, subject to such regulations and limitations as the General Assembly may prescribe."
In responding to the question posed we have examined both decisions of our courts which generally construe the section and decisions which specifically construe the 1964 amendment to the section, which added the language "subject to such regulations and limitations as the General Assembly may prescribe".
A number of decisions of our courts have generally construed the section. In a 1923 decision the Supreme Court held that the purpose of the section was to abrogate the common-law rule which gave to the husband the right to the ownership of rents and profits from his wife’s property as well as the actual or potential ownership of the separate choses in action belonging to his wife. Turlington v. Lucas, 186 N.C. 283, 290, 119 S.E. 366, 370 (1923). In Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512 (1953), the Supreme Court held that in arriving at the intent of the section, "we are not required to accord the language used an unnecessarily literal meaning. . . . Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption." In Dudley v. Staton, 257 N.C. 572, 581, 126 S.E.2d
590 (1962), the Court acknowledged that the language was not intended to disable but to protect women.
Thus, while read literally the language of Art. X, Sec. 4 could be construed to prohibit any equitable distribution of a woman’s property, either prior to or following a decree of absolute divorce, decisions of our courts indicate that such a literal construction is not required, and that the provision must be considered in light of the prior law and the mischief sought to be remedied by the constitutional provision.
Furthermore, the 1964 amendment appears to authorize legislation affecting a married woman’s property rights. This amendment, unlike the original portion of the section, was passed not in response to common-law disabilities enforced against married women but in response to the decision of the Supreme Court in Dudley v. Staton, supra. In that case the Court held that statutes which gave a husband the right in certain instances to dissent from his deceased wife’s will and take a specified share of her estate were unconstitutional to the extent that they diminished a devise of her separate estate in accordance with a will executed by her. Two decisions of our courts specifically discuss the amendment. A legislative history of the amendment is set out in the case of Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967), in which the Court held that the amendment authorized the General Assembly to empower a husband to dissent from his wife’s will. The second case addresses the intent of the amendment, specifically the question of whether it gives the General Assembly the authority to enact general limitations concerning a woman’s property or merely the authority to enact limitations concerning her rights to devise bequeath and convey her property. The Court held that "Whatever the remedial purpose of the amendment, it is by its own terms subject to limitations prescribed by the General Assembly, including any statutory classification and distribution of property under the Equitable Distribution Act." Armstrong v. Armstrong, 85 N.C.App. 93, 101, S.E.2d (1987).
Thus, neither the language of the section, its history nor its purpose as interpreted by our courts would seem to proscribe entry by the court of a judgment of equitable distribution prior to a decree of absolute divorce. Therefore, it is our opinion that the requirement that an equitable distribution must follow a decree of absolute divorce is statutory and not constitutional.
LACY H. THORNBURG Attorney General
Ann Reed Special Deputy Attorney General