Annuling a marriage in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Annulment in Illinois

Annuling a marriage in Illinois

Sometimes you want to be apart from someone you’re married to, you don’t even want to have EVER been married to them. The common law term for declaring that you’ve never really been married is “annulment.” In Illinois, the statute refers to the same concept as an “Invalidity of Marriage.” So, how do you get an annulment in Illinois?

An annulment of a marriage is a judicial determination that no valid marriage ever existed. Long v. Long, 15 Ill. App. 2d 276, 285 (1957)

To request that an Illinois court grant you a judgment of invalidity of marriage, you must file with the Illinois court a petition for invalidity of marriage.

Petition For Declaration Of Invalidity Of Marriage

To prepare a petition for invalidity of marriage, you need to first prepare the caption of your case. It should look like this:

STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, DOMESTIC DIVISION

IN RE: THE MARRIAGE OF )
)
YOUR NAME, )
Petitioner )
) No. (The Circuit Clerk Will Give you a
v. ) case number)
)
YOUR SPOUSE’S NAME, )
Respondent. )

PETITION FOR DECLARATION OF INVALIDITY OF MARRIAGE

NOW COMES the Petitioner pursuant to 750 ILCS 5/301 at seq., and complains of the Respondent, alleging that:

  1. You and your spouse entered into a marriage on X date in Y location.
  2. Then describe the grounds for which you are asking for a declaration of invalidity of marriage.

Your signature

Grounds for Invalidity of Marriage In Illinois

There are four reasons you can get an annulment in Illinois:

  1. Lack Of Capacity To Consent, Duress, Fraud.

“a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;” 750 ILCS 5/301(1)

This is like when Dennis Rodman married Carmen Elektra in a drunken haze. They annulled their marriage the next day.

In theory, a “shotgun wedding” where one party is forced to get married would also qualify under the “duress” clause. This is practically impossible to prove. There is an old court case in Florida where the future father-in-law put away his shotgun halfway through the ceremony so the duress was held to have gone away when the gun was lowered.

Fraud is a more realistic grounds for inability. The rules for proving fraud in a marriage are not black and white. They vary based on the facts of the case. Illinois appellate courts have held that what is essential to a marriage varies from one marriage to the next and therefore a determination of whether a fraudulent act or acts must be in light of the “essentials” of a particular marriage and, therefore, must be decided on a case-by-case basis. Wolfe v. Wolfe, 76 Ill. 2d 92, 96 (1979)

The fraud necessary to warrant an annulment of a marriage must be such as to go to the very essence of the marriage. Louis v. Louis, 124 Ill. App. 2d 325, 328 (1970); Hill v. Hill, 79 Ill. App. 3d 809, 814 (1979); Wolfe, 76 Ill. 2d at 96. “It must be shown that the fraud was of such a nature as to vitiate the actual consent of the defrauded party.” Wolfe v. Wolfe, 62 Ill. App. 3d 498, 501 (1978). “The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation, of something making impossible the performance of the duties and obligations of that relation of rendering its assumption and continuance dangerous to health or life.” Louis, 124 Ill. App. 2d at 328. “False representations as to fortune, character and social standing are not essential elements of the marriage, and it is contrary to public policy to annul a marriage for fraud or misrepresentations as to personal qualities.” Bielby v. Bielby, 333 Ill. 478, 484 (1929).

So, the type of fraud you allege will be weighed by the Illinois family law court in context of its own facts.

For example, in Texas a woman said she was only previously married 3 times when she was actually married 8 previous times. This was deemed sufficient fraud for an annulment. Leax v. Leax, 305 S.W.3d 22, 30-31 (Tex. App. 2009)

But, in Illinois, a husband simply “forgot” to mention all of his previous marriages and the appeals court found that was not sufficient fraud to grant an annulment. In re Marriage of Igene, 2015 IL App (1st) 140344

  1. A Party Lacks the Physical Capacity To Consummate

“a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;” 750 ILCS 5/301(2)

This portion of the statute is often misconstrued for the old wives tail that if you do not have sex, you are never truly married.

In re Marriage of Naguit, 433 NE 2d 296, settled this issue. You cannot annul a marriage in Illinois if you CAN have sex. It doesn’t matter if you really did have sex or not. The only question is COULD you have had sex?

I guess this opens up the subsequent question…what is “sex” for the purposes of annulment?

Since same sex marriage has become legal in Illinois in 2011, sex is definitely no longer just a penis in a vagina. So, this clause of the statute will probably never be a viable basis for an annulment in Illinois.

  1. A Party To The Marriage Is Too Young.

“[A] party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval” 750 ILCS 5/301(2)

For some reason, you are allowed to get married in Illinois as young as 16 so long as you have your parents’ permission. If you got married as a child without permission, you can get an annulment in Illinois.

  1. The Marriage Is Prohibited

Some marriages in Illinois were never supposed to be marriages in the first place. These marriages are prohibited and therefore can be subject to annulment.

“The following marriages are prohibited:

a marriage entered into prior to the dissolution of an earlier marriage, civil union, or substantially similar legal relationship of one of the parties, unless the parties to the marriage are the same as the parties to a civil union and are seeking to convert their civil union to a marriage pursuant to Section 65 of the Illinois Religious Freedom Protection and Civil Union Act;” 750 ILCS 5/212(a)(1)

The second or subsequent marriage of a bigamist is a prohibited marriage. In my experience annulling a bigamous marriage is the most common and most easily accomplished annulment available in Illinois.

If the first marriage is successfully annulled, the second marriage becomes valid automatically in Illinois.

“Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.” 750 ILCS 5/212(b)

The subsequent language needs to be explained. For a period of time in Illinois, same-sex relationship couples could get civil unions but not marriages. When same-sex couples became eligible to get married, the legislature wanted to be sure the same-sex couples weren’t committing some weird bigamy by getting married after getting a civil union, so the latter half of this clause of the statute was included.

“[A] marriage between an ancestor and a descendant or between siblings , whether the relationship is by the half or the whole blood or by adoption;” 750 ILCS 5/212(a)(2)

Woody Allen could not marry his adopted daughter, Soon Yi, in Illinois.

“[A] marriage between an uncle and a niece, between an uncle and a nephew, between an aunt and a nephew, or between an aunt and a niece, whether the relationship is by the half or the whole blood;” 750 ILCS 5/212(a)(3)

This type of marriage of marriage is so weird, no wonder it’s prohibited.

“a marriage between cousins of the first degree; however, a marriage between first cousins is not prohibited if:(i) both parties are 50 years of age or older; or(ii) either party, at the time of application for a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile;” 750 ILCS 5/212(a)(3)

First cousins can’t marry in Illinois…unless a doctor says they’re sterile.

Do I Have To Annul My Common Law Marriage Marriage In Illinois?

No. If you thought you had a common law marriage in Illinois, you do not have to annul that common law marriage because common law marriages do not exist in Illinois.

But, if you were in a state that created a common law marriage then your marriage can be invalidated in Illinois.

“Invalidity of Common Law Marriages. Common law marriages contracted in this State after June 30, 1905 are invalid.” 750 ILCS 5/214

What Happens To Children After An Annulment in Illinois?

A father or mother can’t just escape from their rights and responsibilities as a parent after an annulment in Illinois.

“Children born or adopted of a marriage declared invalid are the lawful children of the parties. Children whose parents marry after their birth are the lawful children of the parties.” 750 ILCS 5/303

What’s The Real Difference Between An Annulment And A Divorce In Illinois?

An annulment means that the marriage never happened. That means neither party gets to invoke their rights under Illinois divorce laws. So an annulment means no division of assets, no allocation of debts, no alimony.

In the interest of fairness, the statute does allow courts to declare a marriage invalid at any point in time they think is fair. So, in theory, a party to an annulment in Illinois could still invoke their rights to assets, debts and alimony.

“Unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive judgment on third parties, that the interests of justice would be served by making the judgment not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support of children, and allocation of parental responsibilities on dissolution of marriage are applicable to non-retroactive judgments of invalidity of marriage only.” 750 ILCS 5/304

So What If I’m Not Eligible For An Annulment in Illinois?

Odds are, you probably don’t qualify for a declaration of invalidity of marriage under Illinois law. But, you probably really want your spouse to know you wish you had NEVER been married to them.

To accomplish this, in lieu of filing just a Petition for Declaration of Invalidity of Marriage you can file a petition titled “Petition For Declaration of Invalidity of Marriage And, In The Alternative, Petition For Dissolution Of Marriage.”

This lets you start with the annulment, which will likely be denied or dismissed and lets you proceed on the divorce which was your second choice.

Annulment in Illinois Through The Catholic Church

If you’re catholic, you can still get your marriage annulled in the eyes of God and the church.

Much like the domestic relations courts of Illinois, the local Illinois dioceses have their own rules and regulations for getting an annulment in Illinois.

If you’re curious about whether your marriage is eligible for annulment in Illinois, contact my Chicago family law office to speak with an experienced Chicago divorce lawyer.