You and your spouse are married and are now looking at ending things. Perhaps you found out you entered into the marriage under less-than-ideal circumstances and want it to be like the relationship never happened. Although most of our clients seek to dissolve their marriage by obtaining a divorce, the Illinois Marriage and Dissolution of Marriage Act also allows a party to seek a judgment declaring the marriage invalid, also known as an annulment. While a divorce is an option, a marriage can be declared invalid and annulled if certain conditions are met.
How Is a Declaration of Invalidity different Than Divorce?
A Declaration of Invalidity of a marriage – more commonly referred to as an annulment – is different than a divorce. Under Illinois law, an annulment, when granted, declares the marriage invalid as of the date of the marriage. Annulments are possible if particular grounds are met. An annulment is also legally different than a divorce. There are statutes of limitations, and some of the grounds for an annulment carry different statutes of limitations than others.
What Are the Grounds?
The grounds are why someone might seek to separate from their spouse. In divorce, there is only one ground in Illinois, “irreconcilable difference.” “Irreconcilable differences” leaves no party at fault. So long as one party cannot remain married to the other, then it will apply.
Grounds for an Annulment in Illinois
The Innocent Party?
The person requesting the annulment cannot be the person at fault. In other words, they cannot be the ones who caused the parties to seek the annulment.
What Are the Grounds for Annulment?
An annulment has four particular grounds and does involve fault, as someone needs to be at fault for the annulment grounds to apply. Only the innocent party can request the annulment.
There are four grounds for annulment are:
- one of the parties to the marriage lacked the capacity to consent to the marriage at the time they were married;
- one of the parties to the marriage lacks the physical capacity to consummate the marriage, and the other party did not know of this incapacity;
- one of the parties to the marriage was 16 or 17 years old at the time the marriage took place and did not have a parent’s or guardian’s consent to marry; or
- the marriage is prohibited by Illinois law.
Lack of Capacity to Consent?
This applies if a party could not consent due to intoxication, or disability, or if the marriage was done under fraud or duress.
Intoxication applies if parties cannot if the marriage and planning happen while someone is under the influence of drugs or alcohol.
A person can be considered unable to consent if they are disabled to the point where they cannot consent. For example, someone with a developmental disability might not be able to consent if their mental development is only that of a child.
As for fraud or duress, it applies in situations where threats are used. Generally, Courts interpret this very narrowly and will consider the facts specific to the case. It is not enough for someone to lie about their sexual or romantic history. It needs to be about something large enough that it might qualify as one of the other grounds.
Lacks the Physical Capacity to Consummate?
Sometimes people wait till marriage to have sexual intercourse, but if someone cannot physically have sex, that needs to be discussed before the wedding. If the partner lies or fails to inform the other about impotence, it can be grounds for annulment.
One Party is Underaged?
Suppose a party is underaged and does not have the consent of the parents to marry. In that case, the marriage can be annulled as the child cannot consent legally to the marriage.
What Kinds of Marriages Are Prohibited?
Most marriages are not prohibited by law, but the ones that are can be annulled. The marriages that are not permitted by law in the state of Illinois include cases of bigamy or consanguinity.
- A relationship is bigamous if one party is already married at the time of the marriage. Suppose someone was in another marriage at the time of the wedding. In that case, the innocent person can request annulment when they discover the second marriage.
- A relationship is consanguineous if the parties are too closely related. For example, if the married pair are siblings, niblings, or an aunt/uncle. The general rule is that if the pair are first cousins or closer, the marriage is consanguineous and barred by Illinois law. This includes situations where the relationship is created by a relative’s marriage, such as step-siblings, or if they are only connected by one parent, such as half-siblings. The reason that this is the case is to prevent incest-related birth defects. However, there is a slight exception, as first cousins can marry if they are older than 50 or have documentation from a doctor stating that they are irreversibly sterile.
What Are the Legal Effects of an Annulment vs. a Divorce?
Divorce acknowledges that the terminated marriage occurred, while an annulment does not. Divorce is just the end of the marital relationship, but an annulment erases the marital union from the history of both spouses.
Children born into an annulled marriage would still be considered children of the marriage and still be entitled to support from both parents.
What Are the Statutes of Limitations for Annulment?
The statute of limitations starts ticking in the annulment once the reason for the annulment is discovered. The typical statute of limitations is 90 days, but some grounds have different statutes of limitation.
What Grounds Have Different Statutes of Limitations?
Suppose one party is underaged when they get married. In that case, the parties have until the younger party reaches the age of eighteen to seek an annulment. After the younger party reaches the age of majority, they will not be granted the annulment.
A marriages prohibited by law can always be annulled since those types of relationships should have never happened under Illinois law.
What Is the Likely Outcome if I Try to Seek an Annulment?
An annulment is not easy to obtain because there are only a few instances that will allow the court to grant one. Even if you have the grounds to obtain an annulment, it still may not apply if there was full disclosure and both parties decided to remain married. If the grounds apply and if it is still within the statutory period, you may be eligible for an annulment.
Deciding whether or not to divorce your spouse is not an easy decision. If you are in the Chicago area, speaking to an experienced divorce attorney in Chicago can give you legal information you need before deciding your course of action. However, it is also important to note that unless you meet one of the above four criteria, you may not seek a judgment declaring your marriage invalid. If you are considering a divorce or annulment and want to know your options, please contact our office for a consultation.