The opinion
BRYANT, Judge,
dissenting.
Because I do not believe that North Carolina law allows the presumption of validity conferred upon a marriage to be successfully challenged absent direct evidence, I respectfully dissent.
*344 I agree with the majority that the plaintiff presented insufficient evidence to support the conclusion that the marriage ceremony participated in by defendant and Braswell in early 1997 met the statutory criteria set out under N.C. Gen. Stat. § 51-1 (1997) requiring the participation of “an ordained minister of any religious denomination,” a “minister authorized by his church,” or “a magistrate.” N.C.G.S. § 51-1 (1997). Therefore, I agree with the trial court’s conclusion “there is insufficient evidence that the marriage ceremony met the requirements for a valid marriage, [thus,] the Court cannot find that D.efendant married Mr. Braswell as contemplated by the statute.” See Lynch, 301 N.C. at 488, 272 S.E.2d at 354 (“Whether defendant is married in the eyes of God, of himself or of any ecclesiastical body is not our concern. Our concern is whether the marriage is one the State recognizes.”). However, the dispositive issue is not whether defendant’s first marriage was void ab initio or merely voidable but, rather, whether plaintiff met his burden of proof establishing that defendant’s first marital union was valid and remained in existence at the time defendant married plaintiff.
“Upon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.” Kearney, 225 N.C. at 163, 33 S.E.2d at 876 (citation omitted). “[P]roof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon which property rights growing out of its validity may be based.” Id. at 163-64, 33 S.E.2d at 876-77. “[W]hen the plaintiff attempts to assert a property right which is dependent upon the invalidity of a marriage, he must, as the attacking party, make good his cause by proof.” Id. at 163, 33 S.E.2d at 876. “The laws of evidence do not recognize a presumption on a presumption. The facts upon which a presumption is based must be proved by direct evidence.” Id. (citation omitted).
Here, the record establishes that plaintiff and defendant were married on 27 November 1997. A marriage license was obtained, and the validity of the marriage ceremony is uncontested. Three children were produced from the union.
Because the validity of the current marriage was not raised as an issue before the trial court, North Carolina law confers upon it a presumption of validity. See id. If such a presumption is to be successfully countered, it must be by direct evidence, not a presumption. See id.
Plaintiff’s direct evidence failed to establish the existence of a valid prior marriage as a result of the early 1997 ceremony. Therefore, *345 plaintiff’s claim that his marriage to defendant was void ab initio cannot prevail. Further, though perhaps not a part of plaintiff’s direct evidence, the record reflects that the early 1997 Islamic marriage plaintiff alleges was valid ended in divorce in a manner recognized under Islamic law. Accordingly, I dissent.