Illinois annulment: ending an invalid marriage

Annulment is the process of terminating an invalid marital union.

Going through a marriage ceremony will not result in a valid marriage in certain circumstances. Ending an invalid marriage - historically called annulment - can be done in Illinois by bringing a civil lawsuit in state court that seeks a court order declaring that the marriage is not valid.

Divorce, by contrast, is the legal process to end a marriage that was valid. Annulment creates a legal status that the marriage never actually existed in the first place.

Some people think of annulment as something only a church can grant. The Catholic Church has a procedure for annulling or declaring a marriage invalid on religious grounds, but the state process ends the legal union. The suit to have a marriage declared invalid does not depend on whether it has been annulled in a church.

Illinois law provides certain grounds upon which to base a suit to have a marriage declared invalid:

  • Incapacity: The person did not have the mental capacity to legally consent to marriage because of mental infirmity; the influence of alcohol, drugs or other similar substances; or force, duress or fraud.
  • Physical incapacity: The person is unable to physically consummate the marriage and the other party did not know this.
  • Youth: The person was not 18 and did not have parent, guardian or court approval.
  • Prohibition: The person was prohibited from entering the marriage. For example, he or she may have already been married to someone else or too closely related by blood to the other spouse to legally marry.

For most grounds, Illinois law has strict deadlines for filing a petition to have a marriage declared invalid. Those deadlines vary depending on the reason for the invalidity. For a prohibited marriage, there is no deadline, except that if it is brought after the first party has died, it must be within three years of the death.

The parties to the invalid marriage have standing to file the petition to end the marriage, but so do some other interested parties. For example, a parent, guardian or the minor him or herself can seek annulment of the marriage of a child under 18 who married without parent, guardian or judicial permission. Others have standing in the various other situations.

It is important to consult with a family lawyer who has handled annulments before. The law is complex as regards when a putative spouse (one who believed a marriage was valid) has certain rights to property or alimony as in a divorce proceeding.

In addition, the court will decide whether to declare the marriage invalid as of the date of the initial ceremony or the date of the court order. Whether or not the order is retroactive can have important implications for property division, spousal maintenance and legal matters related to children.

This article is an overview of a complex and detailed area of Illinois law. Be sure to consult an attorney as soon as possible if you believe your marriage or the marriage of someone close to you or for whom you have legal responsibility may be invalid. Do not delay because deadlines for filing the annulment petition are sometimes short.

Illinois attorney Susan E. Kamman of Susan E. Kamman & Associates represents family law clients throughout the Chicago metro area and the state of Illinois.