More about This Topic
Foreign Marriage and Divorce in Illinois
People get married all over the world and then come to Illinois to live. Often, along the way, those same people try to get divorced. So, if you’re married in a foreign country, can you get divorced in Illinois? How do foreign marriages get treated under Illinois divorce law?
Firstly, you do not have to get divorced in the country you got married. If you have been in Illinois for 90 days, you can get divorced in Illinois.
Illinois doesn’t really require you to formally prove that you were married in order to get divorced. To request a divorce, you must simply say where and when you were married in your petition for dissolution of marriage.
“The complaint or petition for dissolution of marriage…shall be verified and shall minimally set forth:
The date of the marriage and the place at which it was registered” 750 ILCS 5/403(a)
That’s it. The state of Illinois will take your word for it that you were married and will subsequently grant you a divorce and allow you to invoke all the rights of divorce such as child custody, child support, alimony, division of assets under the Illinois divorce law…just because you said you were married.
The only problem is when your supposed spouse says you are not, in fact married.
Foreign Marriage Certificate
In Cook County, Illinois and every other county in the United States, they keep a close record of who in fact is married and who is not. Showing a marriage certificate from a county in the United States is going to prove you’re married.
Does showing a marriage certificate from another country also prove you’re married? It sure does!
“Proof of Foreign Marriage. A marriage which may have been solemnized or had in any foreign state or country, may be proved by the acknowledgment of the parties, their cohabitation, and other evidence. Certified copies of records of a marriage performed in any foreign state or country obtained from an authorized state governmental unit, embassy, or consulate may be admitted as an exception to the hearsay rule.” 750 ILCS 5/409
In Illinois, you don’t need anything to prove the foreign marriage certificate is real beyond the certificate itself. This is important because almost every other document presented in an Illinois court must get around the hearsay rule.
Hearsay in Illinois “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid.801(c). Or, more simply, you can’t say something or bring something in writing to court that someone else said or wrote.
So, A foreign marriage certificate in Illinois needs no additional proof of veracity outside the marriage certificate’s own existence. You do not need an Apostille to prove a foreign marriage certificate under Illinois law.
Most other countries don’t write their marriage certificates in English so you’ll need a certified translation of the marriage certificate.
What is a certified translation? It’s literally anyone swearing and attesting to a translation. Again, the Illinois courts will believe you.
This, clearly, makes it really difficult to prove that you were not married in a foreign country if your spouse has a foreign marriage certificate.
In fact, you’d have to go to the foreign country that supposedly issued the marriage certificate and get a court order stating that the parties, in fact, aren’t married and then certify that foreign judgment with the Illinois court. Then, the Illinois court would have to weigh the credibility of the two documents to determine if the parties were, in fact, married.
What If You Don’t Have A Foreign Marriage Certificate?
People have been getting married for a long time in Illinois so there’s an old 166 year old rule from when Abraham Lincoln was a lawyer in Illinois..
In all civil actions other than bigamy, adultery or criminal conversations, “reputation,” cohabitation, the acknowledgement of the parties, etc., are sufficient evidence of the marriage. Harman v. Harman (1854), 16 Ill. 85.
So, the acknowledgement of both parties is enough to prove marriage.
If one party says they were married but the other denies it, the judge will listen to both of their testimonies to see who is more credible.
No one gets married in a foreign country and then the couple just arrives in America together. Typically, one person immigrates to America and then brings their spouse over by showing the INS or Homeland security their foreign marriage certificate.
So, you can just file a FOIA with homeland security to get a copy of your foreign marriage certificate which is prima facie proof of your marriage.
Undocumented Immigrants And Divorce In Illinois
There is a group of people who don’t have a Homeland Security file where they can pluck their foreign marriage certificate from: undocumented immigrants.
Undocumented immigrants didn’t enter the country through homeland security so there is no record of their marriage…with the U.S. government.
I have lots of experience with Latin American, Indian and Chinese marriages that I have subsequently divorced. They all have an organized system where marriage certificates are stored. There are many services which can retrieve those marriage certificates. But, usually a relative just gets a copy, sends it to the divorcing person in Illinois and automatically proves their marriage as described above.
Foreign Marriages That Are Invalid In Illinois
Other countries have marriage laws that can be very different than Illinois’ laws. If parties got married in contravention to what Illinois considers a valid Illinois marriage, the parties can invalidate the marriage under Illinois law. This is also known as an “annulment.”
An invalidated marriage is a marriage that is treated by Illinois law as though it didn’t happen at all. This means neither party can invoke the divorce laws that allow for alimony or division of assets.
A lot of times, people in foreign countries get married way too young or the marriage is forced. These marriages can be invalidated in Illinois.
“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)
“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(3)
Lots of foreign marriages happen between people who could never get married in Illinois. Invalidation is also available if “the marriage is prohibited.” 750 ILCS 5/301(4)
Common prohibited marriages are generally of two types: bigamists and cousins marrying each other.
“The following marriages are prohibited:
(1) a marriage entered into prior to the dissolution of an earlier marriage
(4) a marriage between cousins of the first degree” 750 ILCS 5/212
So, if you were married in a foreign country and you were too young to get married, pressured into marriage, a second wife, or are your spouse’s cousin…you’re probably not married in Illinois and your marriage can be invalidated.
If you were married in a foreign country and are splitting up with your spouse, contact my Chicago family law office to speak with an experienced Chicago divorce lawyer. Find out what your options really are from someone who knows about foreign issues in divorce.