Illinois Annulment FAQs
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1. What is annulment?
Annulment (declaration of invalidity) is a legal proceeding to declare a purported marriage invalid. When a marriage is annulled, it is as if it had never happened. Usually, the court makes a declaration of invalidity retroactive, declaring the marriage invalid as of the date the ceremony occurred.
2. What are the grounds for annulment?
In Illinois, there are four grounds for annulment of a marriage:
- At the time of the marriage ceremony, one of the parties lacked capacity to consent to the marriage because of mental incapacity or infirmity (for example, mental retardation, psychosis, or dementia) or the influence of alcohol or drugs, or was induced to enter the marriage by force, duress, or fraud regarding the essentials of the marriage.
- A party lacks the physical ability to consummate the marriage by sexual intercourse, and the other party did not know of the incapacity.
- A party was aged 16 or 17 years and did not have the consent of parents or guardian, or judicial approval.
- The marriage is prohibited--for example, one party was already married at the time of the marriage ceremony.
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 (ask) the court for an annulment, but no later than 90 days after the petitioner obtained knowledge of the grounds.
Inability to consummate the marriage: Either party may petition 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 before the underage party reaches the age at which marriage is permitted.
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.
4. Must a petition for invalidity be filed to set aside a prohibited marriage?
No, because a prohibited marriage is void. For example, if you go through a marriage ceremony with someone who already has a legal spouse, no marriage results, so there's really no marriage to be annulled. However, many lawyers believe it's better to be safe than sorry and recommend seeking a judicial declaration of invalidity.
Either party may request a declaration of invalidity for a void marriage. In the case of a bigamous marriage, the legal spouse or the State's Attorney may file, and after the death of one of the parties, a child of either party may file within three years of the death of the first party to die.
5. What is the legal status of a child born of a void or voidable marriage?
Children born of a marriage that is declared invalid are lawful (legitimate).
6. Is a "common law marriage" legal in Illinois?
No. Illinois does not recognize common law marriages entered into in the state after June 30, 1905.
7. What are the requirements for a legal marriage?
The parties must get a license, go through a marriage ceremony, and register the marriage. A flaw or error in the license or registration alone does not invalidate a marriage, but lack of a marriage ceremony does.
8. What if someone goes through a marriage ceremony in good faith, but it turns out there is no legal marriage because of an existing marriage or other reason?
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 they were married, is a called a "putative spouse." A putative spouse has the same rights as a legal spouse, including the right to alimony (also called "maintenance") following termination of the spousal status, whether or not the marriage is prohibited. This is meant to protect the rights of someone who innocently enters into a void marriage.
9. What happens when the putative spouse finds out the truth?
Once the putative spouse learns that he or she isn't validly married, his or her status as a putative spouse ends, and the putative spouse can't acquire any further marital rights.
10. 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 or displace the rights of a legal spouse or those acquired by other putative spouses. The court is required to distribute property, maintenance, and support rights among the claimants as appropriate under the circumstances and in the interests of justice.