Posted on December 31, 2021

Do You Need To Consummate Your Marriage In Illinois?

When people say “I wish I was never married to my ex” they really mean it. People will start thinking of ways they can possibly have their marriage annulled and, thus, never have been married to their ex. The most common theory proposed is that “we never really consummated our marriage (had sex).” After all, how you could prove otherwise?

It would actually be very easy to prove that the marriage was consummated, the other party would simply testify that “On X date, we had sex.” You are a married couple. What’s unbelievable about having sex with each other?

Still, with default divorces or an actual failure to consummate a marriage, an Illinois marriage can be invalidated with sufficient evidence of failure to consummate.  

Invalidating A Marriage In Illinois

Either party can file a Petition For Invalidity Of Marriage if they believe the marriage is not valid pursuant to Illinois law.

“The court shall enter its judgment declaring the invalidity of a marriage (formerly known as annulment) entered into under the following circumstances:” 750 ILCS 5/301

An invalid marriage will typically not allow for court ordered relief in the form of division of marital assets (there can be no marital assets if there was no marriage) or maintenance (formerly known as alimony).

The grounds for invalidity of marriage in Illinois are:

  1. Lack of capacity to consent, duress or fraud,
  2. The marriage was prohibited by law (child marriage or bigamy),
  3. 16-17 year olds getting married without their parent’s permission, or
  4. Lack of capacity to consummate the marriage.

Consummation As A Grounds For Invalidity Of Marriage In Illinois

A marriage may be declared invalid (annulled) in Illinois if “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(3)

This is a two-part test: 1) one party is not able to physically have sex and 2) the other party didn’t know that they were unable to physically have sex.

It is hard to imagine the physical incapacity that would prevent someone from having sex. Perhaps someone who had suffered an accident or a congenital deformity would satisfy this part of test.

It is harder to imagine that such an incapacity would or could be concealed from the eager bride or groom marrying the person with the incapacity. A hidden incapacity to have sex would probably only be psychological…which has been deemed a valid incapacity by Illinois courts.

“[T]he majority of courts which have considered the question hold that a marriage may be held invalid based upon a spouse’s psychological incapacity to consummate the marriage but only where the psychological impediment is shown to be incurable or permanent.” In re Marriage of Naguit, 104 Ill. App. 3d 709, 720 (Ill. App. Ct. 1982)

“The willingness to consummate the marriage includes the ability to do so both mentally and physically.” Louis v. Louis, 260 NE 2d 469 – Ill: Appellate Court, 1st Dist. 1970

Refusal To Consummate A Marriage Can Be Fraud In Illinois

A bride or groom’s refusal post-marriage to have sex would, in fact, support one of the other bases for a declaration of invalidity of marriage: “fraud”

“[W]here one party fraudulently misrepresents a willingness to consummate the marriage, it will constitute ground for a declaration of invalidity.” In re Marriage of Naguit, 104 Ill. App. 3d 709, 720 (Ill. App. Ct. 1982)

If the party incapable of sex had earlier alleged or implied that they could have sex, that would constitute fraud as to “something essential to the marriage”

“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.

If you are reading articles about divorce, you will already agree with me that sex is essential to a marriage.

What If You Can’t Get Your Marriage Annulled in Illinois

Other states may be more liberal with their definition of whether failure to consummate a marriage invalidates that marriage. If an annulment is granted in another state, Illinois will give “full force and effect to the out-of-state annulment decree.” In re Marriage of Harris, 560 NE 2d 1138 – Ill: Appellate Court, 1st Dist., 1st Div. 1990

So, if annulment is that important to you, you may want to try in another state first.

Failing another states judgment of invalidity, you will have to proceed with a Petition For Dissolution Of Marriage. A petition for dissolution of marriage will allow for the division of marital assets and debts and a possible award of maintenance from one party to another.

In my experience, most Petitions For Invalidity of Marriage devolve into a Petition For Dissolution of Marriage and it is, practically, irrelevant as an annulled marriage can still allow for some relief if the court deems such relief appropriate.

“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

If you are serious about alleging a failure to consummate your marriage as a basis for a declaration of invalidity of marriage in Illinois, you have serious challenges before you. Contact my Chicago, Illinois law firm to discuss the matter with an experienced Illinois family law attorney.

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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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