In the old days, folks would just get married in a church, jump a broom, or just start living together. Before 1905, people in Illinois did not have run down to the county clerk to register their marriage. Our forefathers would just say, “Well, we’ve been together for a few years so I guess we’re married”…and the law agreed with them. That was known as “common law marriage in Illinois.”
Common law marriage does not exist in Illinois anymore. Illinois law requires two things to be actually married 1) solemnization and 2) registration.
Now Illinois law requires “solemnization” to validate a marriage. ”A marriage between 2 persons licensed, solemnized and registered as provided in this Act is valid in this State.“ 750 ILCS 5/201
The statute goes to describe how a marriage can become valid in Illinois. A valid marriage in Illinois always involves a solemnization (a kind of wedding or exchange of vows). Even if it was not a valid solemnization under the law or your particular religious tradition it is still a valid marriage so long as someone believed the solemnization was real. “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” 750 ILCS 5/209(b).
To be married in Illinois you have to have had your marriage registered with the state. In Illinois this is done through the county clerk.
“When a marriage application has been completed and signed by both parties to a prospective marriage and both parties have appeared before the county clerk and the marriage license fee has been paid, the county clerk shall issue a license to marry and a marriage certificate” 750 ILCS 5/203
Exceptions to Formal Marriage
There have been many attempts to find exceptions to the requirement that a marriage must be solemnized and registered to be valid. After all, people live together, have children and mix their finances without a formal marriage all the time. Shouldn’t those people have the same rights as any other married couple? Not in Illinois!
The absolute requirement for requirement of registration for a valid marriage was certified by the Illinois Supreme Court as recently as 2016 in Blumenthal v. Brewer, 2014 IL App (1st) 132250).
In that case, two women lived together 30 years. The two women had children together. The two women owned a house together. The two women registered with Cook County’s Domestic Partner Registry. The two women literally did everything a couple could do look and be married except for actually getting married…because they weren’t allowed to because same-sex marriage was illegal at the time.
The Illinois Supreme Court said that the two women were not married. So, if Mrs. Blumenthal and Mrs. Brewer weren’t married…neither is anyone else who didn’t or couldn’t register their marriage.
Out Of State Common Law Marriage
Illinois recognizes marriage that are valid in other 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.” 750 ILCS 5/213
So, if you lived in a state that allows common law marriage, you subsequently became married under the common law marriage rules of that state, and then you moved to Illinois you may be married in Illinois under 750 ILCS 5/213.
But, consider the last sentence of that statute, “except where contrary to the public policy of this State.”
Illinois is so anti-common law marriage that a foreign common law marriage would probably not be valid in Illinois. The stark decision in Blumenthal v. Brewer even declared, “this court finds that the current legislative and judicial trend is to uphold the institution of marriage.”
What Rights Do Unmarried Couples Have In Illinois?
The reason it’s so important that a marriage be valid is because if you don’t have a valid marriage in Illinois, you cannot invoke your rights in divorce.
If an unmarried couple has a child in Illinois they have the exact same rights vis-à-vis that child as a married couple. The unmarried couple can and will enter into an allocation of parenting responsibilities and parenting time that will govern their relationship with the child just as a divorcing couple would. This document includes child support and other financial issues relating to the child.
When it comes to property, it’s a different story, though. The unmarried couple is treated identically to two friends or business partners who had property either individually or together. That is, what is in either person’s name or possession will remain in that person’s name or possession.
If there is property in both parties’ names and the parties cannot agree how to untangle themselves regarding that property, then the parties must file a partition action. “When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common or other form of co-ownership and regardless of whether any or all of the claimants are minors or adults, any one or more of the persons interested therein may compel a partition” 735 ILCS 5/17-101
This does not happen in divorce court no matter how long the couple have been together or how intimate their relationship was. In Cook County, partitions happen in Law Division(depending on the value of the property)
The Law Division court will hear how the parties were a couple and the circumstances in which the property was put in both of their names. The Law Division court will then “enter further judgment fairly and impartially dividing the premises among the parties” 750 ILCS 5/17-105
The words “fairly and impartially” in the statute imply that the division will be a straight 50/50 split but additional factors like contribution can be considered by the courts.
Despite being a family law lawyer, my office does handle partition actions between unmarried couples. The courts, however, are not domestic relations courts. The rules, the judges and the personalities in Cook County’s Law Division courts are completely different than those in Cook County’s Domestic Relations courts. Depending on the case, we may co-counsel with a Cook County lawyer who is a more frequent presence in the Cook County Law Division courts.
Finally, in Illinois, there is absolutely no alimony or maintenance awarded to either party in an unmarried relationship. While other states have considered support for unmarried partners called “palimony,” palimony is unknown in Illinois.
If you have questions about whether your marriage is valid and what your rights are, contact my Chicago, Illinois law firm to speak with an experienced family law attorney.