Legitimacy of Children after Annulment and the Putative Spouse

The Illinois Marriage and Dissolution of Marriage Act, at section 750 ILCS 5/303, covers the “legitimacy” of children. It codifies that children born or adopted of a marriage declared invalid are still the lawful children of the parties. Additionally, children whose parents marry after their birth are the lawful children of the parties. This means that the annulment of a marriage should not lead to one party requesting a DNA test and seeking a parentage action to establish a parent-child relationship.

The putative spouse section, also found under the issue of annulment in the Illinois Marriage and Dissolution of Marriage Act, in section 750 ILCS 5/305, is unlike the putative father described in the parentage act. It states that any person, having gone through a marriage ceremony, who has cohabited with another to whom he/she is not legally married in the good faith belief that he/she was married to that person is a putative spouse until knowledge of the fact that he/she is not legally married terminates his/her status and prevents acquisition of further rights.

A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited, under Section 212, or declared invalid, under Section 301. If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

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