In Illinois there is a great deal of law as to what makes a marriage valid. 750 ILCS 200 et al. A marriage license must be applied for, a marriage must be solemnized and the marriage license must be recorded appropriately.
It is exceptionally rare for a marriage conducted in Illinois to have its marriage certificate declared invalid.
Even if some kind of error happened, Illinois law presumes you are married pursuant to 750 ILCS 5/209(b) which states:
“The solemnization of the marriage is not invalidated: (1) by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if a reasonable person would believe the person solemnizing the marriage to be so qualified;”
In this age of destination weddings, it’s difficult to be sure if a marriage certificate from a Caribbean island nation is, in fact, genuine. Typically, international resorts do significant leg work to determine that the weddings on their grounds are legitimate but how would you know without hiring local counsel or a translator at the very least.
So long as your marriage was valid under the local laws where the marriage was performed, your marriage is valid in Illinois pursuant to 750 ILCS 5/213 which states:
“All marriages contracted within this State, prior to the effective date of this Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State, except where contrary to the public policy of this State.”
What’s more, oftentimes weddings are performed in unorthodox ways, such as where a friend will conduct the ceremonies. It can hardly be expected for the friend to verify that that the marriage was adequately performed and registered under local laws. Once again, the solemnization language from above in 750 ILCS 5/209(b) probably ensures that you are married.
What happens at the end if you find out that despite all this that you were in fact not married?
You may still be protected by 750 ILCS 5/305 which would declare you a putative spouse, entitled to all the benefits of someone who had been legitimately married including division of assets and maintenance.
“Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited, under Section 212, or declared invalid, under Section 301.”
The truth is that most people who discovery that they are not really married is because they find out that their spouse already was married at the time of the marriage ceremony or they were. In this case, the putative spouse remedy does not apply.
“If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interests of justice.” 750 ILCS 5/305
What’s more you cannot invoke the concept of a putative spouse to say that you were in a common law marriage (which don’t exist in Illinois for marriages after 1905.
If you’re not married, then you’re just a stranger to your spouse. You don’t get to take advantage of Illinois’ matrimonial law that lets you divide up assets and award maintenance. Perhaps this is to your advantage. Perhaps this is to your detriment.
If you don’t know if you’re married or not, contact my Chicago, Illinois office to schedule a free consultation