Illinois Annulment FAQ's

1) What is annulment, and when can a marriage be annulled?
Annulment (declaration of invalidity) is a legal proceeding to declare a purported marriage to be invalid -- as if it had never happened.

2) What are the grounds for annulment?

1. At the time of the marriage ceremony, one of the parties lacked capacity to consent to the marriage because of mental incapacity or infirmity (e.g., retardation, psychosis, dementia, or intoxication by alcohol or drugs) or was induced to enter into the marriage by force or duress or by fraud involving the essentials of marriage;
2. A party cannot consummate the marriage by sexual intercourse and the other party did not know of the incapacity;
3. A party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval;
4. The marriage is prohibited (see above).

3) Is there a time limit for getting an annulment?
Yes. The time limit depends upon the grounds for annulment.

Lack of capacity to consent to the marriage: either party may petition, but the petition must be filed no later than 90 days after the petitioner obtained knowledge of the grounds.

Inability to consummate the marriage: either party may petition, but the petition must be filed within one year after the petitioner obtained knowledge of the grounds.

Underage party: that party, or his or her parent or guardian, may petition for annulment prior to the time the underage party reaches the age at which marriage is permitted.

4) Must a petition for annulment be filed to set aside a prohibited marriage?
No. A prohibited marriage is void, whether or not a petition for annulment is brought. However, many lawyers believe it's better to be safe than sorry, and they recommend seeking a court's declaration of annulment.

5) If one wishes to have a void marriage annulled, who may file the petition?
A petition for declaration of invalidity for a void marriage may be filed by either party, the legal spouse in case of a bigamous marriage, the State's Attorney, or after the death of one of the parties, a child of either party, at any time not to exceed 3 years following the death of the first party to die.

If grounds for annulment exist for a voidable marriage, but the petition is not filed within the prescribed time, what happens?

If a petition for annulment of a voidable marriage is not filed within the time subscribed by law, the marriage will be recognized as valid.

6) What is the legal status of a child born of a void or voidable marriage?
A child born of a voidable or void marriage is legitimate, even if the marriage is annulled.

7) Is a "common law marriage" legal in Illinois?
No. Illinois does not recognize common law marriages contracted in the State after June 30, 1905.

8) What are the requirements for a legal marriage?
The parties must get a license, go through a marriage ceremony, and register the marriage. Flaw or error in the license or registration alone does not invalidate a marriage, but lack of a marriage ceremony does.

9) What is the status of a person who goes through a marriage ceremony in good faith, but it turns out there is no legal marriage because of a flaw, such as a prior existing marriage (bigamy) or some other prohibition or disability?
A person who goes through a marriage ceremony and cohabits with one to whom he or she is not legally married in the good faith belief that he or she was married to that person, is a putative spouse until knowledge of the fact that there is no legal marriage.

10) What are the legal rights of a putative spouse?
A putative spouse acquires the same rights as a legal spouse, including the right to maintenance following termination of the spousal status, whether or not the marriage is prohibited.

11) What happens when the putative spouse finds out the truth?
Once the putative spouse becomes aware of the flaw in the marriage, he or she cannot acquire any further marital rights.

12) If there is a bigamous marriage, or more than one putative spouse, what are the legal rights of each?
Rights acquired by a putative spouse do not supersede the rights of a legal spouse or those acquired by other putative spouses. Property, maintenance and support rights are distributed among the claimants as appropriate in the circumstances and in the interests of justice.