If a person wishes to terminate their marriage, they can file a petition seeking the dissolution of the marriage or a judicial declaration that the marriage is invalid. Although the practical outcome of both actions is similar—the end of the marriage—the legal implications are very different.
In a divorce, the court puts an end to a legally valid marital relationship between the parties. After receiving a divorce judgment, the parties are no longer married, but the law recognizes the fact that they were once married.
In contrast, an action to have a marriage declared invalid involves a judicial finding that the parties never had a legally valid marital relationship, to begin with. In essence, the parties are considered to have never been legally married in the first place. This distinction is important because a person’s right to things like spousal maintenance and property division depends on the past existence of a marital relationship between the parties.
Another important distinction between divorce and annulment is that obtaining a divorce does not require allegations of fault. Conversely, a court will declare a marriage invalid only in certain conditions.
Illinois courts will generally grant an annulment due to one of the following:
- Lack of capacity: A marriage is a contract between two adults of sound mind who must enter into the union willingly. If either party lacks the physical or mental capacity—due to a medical condition, for example—to enter into a marriage, the marriage is considered invalid.
- Lack of parental consent for minors: Individuals under the age of 18 are presumed to lack the capacity to enter into any contract. A marriage where either party lacks the capacity to marry due to their minor age is considered invalid unless the minor’s parent or guardian consents to the marriage.
- Undue influence: Like other contracts, both parties must willingly agree to enter into a marriage. However, if a marriage resulted from undue influence—such as fraud, the threat of violence, duress, or force—it is not the product of a voluntary agreement between the parties and is therefore invalid.
- Failure to consummate: If either party is physically incapable of consummating the marriage through sexual relations when they got married, and the other party was unaware, the marriage is considered to be the product of fraud and may be declared invalid.
- Unlawful marriage: If marriage between the parties would be considered unlawful—such as in cases of bigamy, incest, necrogamy, etc.—the marriage is invalid from the outset.
Proceedings for the Declaration of Invalidity of a Marriage
Under Illinois, a marriage is presumed valid, unless a party submits sufficient evidence demonstrating that the marriage is invalid based on the above-cited grounds. The difficulty in proving the invalidity of a marriage is why it is rare for a court to grant one.
Moreover, a party who successfully proves the invalidity of their marriage, but claims the right to spousal support or the equitable distribution of marital property, must take the additional step of proving the existence of a “putative marriage.”
The right to spousal maintenance and the division of marital property arise from a legally valid marital relationship. Married spouses owe each other a legal duty to provide each other with enough financial support to cover their basic needs and living expenses. This duty is the basis of spousal support orders upon divorce, even though divorced spouses are no longer subject to that duty.
Furthermore, both spouses essentially have joint ownership rights to the property and assets they acquired during the marriage.
However, in cases where the parties’ marriage was declared invalid, a court determines that the parties never had a legally valid marriage from which the legal duty of support and joint ownership could have arisen.
However, a party to an invalid marriage can nevertheless receive spousal maintenance and marital property rights if they can show that they cohabitated with their purported spouse under the honest belief that their marriage was legal before discovering he basis of its invalidity. If successful, a putative spouse will be granted the same rights that a legal spouse enjoys. Therefore, putative spouses may be entitled to spousal support and half of the former couple’s “marital” property when the court renders its judgment declaring the marriage invalid.
To Learn About the Extent of Your Legal Options, Call Law Offices of Jonathan Merel, P.C. for a Consultation
Are you concerned about your legal rights regarding a marriage that is ending? If so, you should discuss your case with an experienced attorney from the Law Offices of Jonathan Merel, P.C. to explore the nature and scope of your privileges and obligations under Illinois family law.