If a young pregnant girl in North Carolina got a marriage license before the October 1, 2001 age-raise but tried to use it after that date, was her marriage valid?
Plain-English summary
Effective October 1, 2001, Session Law 2001-62 raised North Carolina's minimum marriage age. Before that date, an unmarried girl who was older than 12 but younger than 16 could legally marry with parental consent if she was pregnant or had given birth. After October 1, 2001, the floor went up to 14, and a 14- or 15-year-old needed a court order before marrying.
Randolph County Register of Deeds Ann Shaw asked the AG two questions. First, what about marriage licenses issued before October 1, 2001 that the parties tried to use after that date for a girl under 14? Second, when a 14- or 15-year-old married a 16- or 17-year-old, did the register of deeds need both a court order and parental consent?
Senior Deputy AG Ann Reed answered both.
On the first question. The license is not what creates the marriage. Under N.C.G.S. § 51-1, marriage requires a male and a female who may lawfully marry to appear before an ordained minister or magistrate who declares them husband and wife. State v. Robbins (1845) and State v. Parker (1890) confirm that failure to procure a marriage license does not invalidate an otherwise valid marriage. The corollary: a license alone is not enough either. The new age requirements apply to all marriages solemnized on or after October 1, 2001, regardless of when the license was issued.
That said, N.C.G.S. § 51-3 makes the marriage of an underage party voidable, not void. Sawyer v. Slack (1929) held the marriage stays valid until a court declares it void in a direct action attacking validity. State v. Parker added that "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." So an underage marriage performed under a stale license stayed in legal effect until somebody asked a court to undo it, and possibly survived even that challenge if the parties continued to live as married.
On the second question. The two statutes operate independently. N.C.G.S. § 51-2 requires parental consent for a person over 16 but under 18 (waived for minors emancipated under Article 35 of Chapter 7B). N.C.G.S. § 51-2A requires a 14/15-year-old who is pregnant or has given birth, or who is the 14/15-year-old putative father of a child or unborn child, to obtain a court order from the district court that considers the best interests of the minor. When a 14/15-year-old marries a 16/17-year-old, the register of deeds must require the court order from the 14/15-year-old and the parental consent from the 16/17-year-old. Neither requirement substitutes for the other.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. North Carolina has continued to amend its marriage statutes since 2001, including significant 2021 amendments raising the minimum marriage age to 16 and tightening requirements for marriages involving minors. Anyone working with current marriage applications should consult current statutes and current court rules before relying on this opinion.
Background and statutory framework
The pre-2001 framework. Before October 1, 2001, North Carolina permitted a pregnant or recently-pregnant female between 12 and 16 to marry with parental consent under N.C.G.S. § 51-2. The minimum age, by exception for pregnancy, was as low as 12. Session Law 2001-62 raised the floor.
Session Law 2001-62. Effective October 1, 2001, the new age rules required (a) age 16+ with parental consent for the standard track, and (b) age 14 or 15 with a court order under § 51-2A for the pregnancy-track exception. Below 14, no marriage was permitted.
The 60-day license window. N.C.G.S. § 51-16 gives a marriage license a 60-day life: parties may "celebrate the proposed marriage at any place within the said county" within 60 days of issuance. Register Shaw's concern was that a license issued before October 1, 2001 could still be used through approximately late November. The AG opinion confirmed that the license window did not let the marriage escape the new age rules.
Why the license is not what creates marriage. State v. Robbins (1845) and State v. Parker (1890) hold that the failure to procure a license does not invalidate an otherwise valid marriage. Marriage is created by the minister's or magistrate's solemnization, with a license as a regulatory overlay. The AG flipped this principle to apply forward: just as the absence of a license cannot invalidate a marriage that meets substantive requirements, the existence of a license cannot validate a marriage that fails substantive requirements.
Voidable versus void. N.C.G.S. § 51-3 makes underage marriages voidable rather than void. Sawyer v. Slack (1929) holds the marriage is valid until a court directly attacks it. State v. Parker further suggested that ratification by post-age-of-consent cohabitation could foreclose attack altogether. So while an underage marriage technically violated § 51-2, it would stay in legal effect unless challenged, and might survive even a challenge under the ratification doctrine.
Parental consent versus court order. The two statutes target different vulnerability concerns. Parental consent under § 51-2 functions as a parental-veto mechanism over 16/17-year-old marriages. Court orders under § 51-2A function as judicial protection in pregnancy-track 14/15-year-old marriages. They serve different protective purposes, so they apply cumulatively rather than alternatively when both age categories are present.
Emancipated minors. A minor emancipated under Article 35 of Chapter 7B is treated as an adult for many legal purposes and is exempt from the parental-consent requirement under § 51-2. The opinion did not address whether an emancipated 14/15-year-old could marry without a court order under § 51-2A. The statutory text would suggest the court order requirement still applies because emancipation does not raise the minor's age.
Common questions
Q: Could a 13-year-old who was pregnant marry on the strength of a license issued in September 2001?
A: Based on the 2001 opinion, no. The new October 1 floor of 14 applied to the solemnization, not to the license. If the marriage was performed anyway, it was voidable under § 51-3 and would stay in legal effect unless challenged in court.
Q: Could a minister be criminally liable for solemnizing a marriage of a 13-year-old after October 1, 2001?
A: The opinion did not address criminal liability of officiants. Other statutes governing solemnization would need separate analysis to determine whether a minister or magistrate who knowingly violated the age rules could face criminal sanction.
Q: What happens if the parties divorced after an underage marriage?
A: The opinion did not address divorce. Marriage of underage parties is voidable under § 51-3, and an annulment action would be the typical route to undoing the marriage. Divorce assumes a valid marriage existed. A spouse who wanted to escape an underage marriage could ask for annulment as a direct attack on validity.
Q: Did a parent's failure to consent for a 16/17-year-old void the marriage?
A: Failure to procure required consent is treated like failure to procure a license: the marriage is not automatically void if the substantive requirements (age, capacity, etc.) are met. The marriage may be voidable. State v. Robbins and State v. Parker supplied the framing.
Citations
Statutes:
- N.C.G.S. § 51-1 (essentials of valid marriage)
- N.C.G.S. § 51-2 (age requirements, as amended by Session Law 2001-62)
- N.C.G.S. § 51-2A (court order requirement for 14/15-year-olds)
- N.C.G.S. § 51-3 (voidable rather than void marriages of underage parties)
- N.C.G.S. § 51-16 (form of marriage license; 60-day window)
- Article 35 of Chapter 7B (emancipation of minors)
- Session Law 2001-62 (raising minimum marriage age effective October 1, 2001)
Cases:
- State v. Robbins, 28 N.C. 23 (1845) (failure to procure license does not invalidate otherwise valid marriage)
- State v. Parker, 106 N.C. 711, 11 S.E. 2d 517 (1890) (same; ratification by cohabitation after age of consent)
- Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929) (voidable marriage valid until direct judicial attack)
Source
Original opinion text
REPLY TO: Ann Reed
Administrative Div.
(919) 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).
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