If My Marriage License was Never Registered Do I Have to File for Divorce?

If My Marriage License was Never Registered Do I Have to File for Divorce?

Last updated: September 2009

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.  This article was published on September 15, 2009.

Q:    I want to know if I’m married, and I need to get divorced.  Several years ago, my “spouse” and I got a marriage license, got married in front a judge, but never registered the license at the County Clerk’s.  We lost the license, and there’s no record of it being registered anywhere.  If we don’t want to be married anymore, do we need to get divorced?

A:    A valid marriage must be “licensed, solemnized and registered.”  You’ve got two out of three, so you’re pretty close.  Those factors, combined with the fact that you apparently meant to be married, probably tips the balance toward marriage. 

If you want to be sure you’re not married, you can get divorced.  Only your “spouse” could try to fight your attempt to dissolve what you thought might be a valid marriage.
 
Part II of the Illinois Marriage and Dissolution of Marriage Act covers Marriage.  The very first section covers “formalities.”  It says:  “A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this State.”

So, “licensed, solemnized and registered” are the three key ingredients of a valid Illinois marriage.

No Illinois court case deals with what happens when the registration ingredient is missing.  But, cases dealing with disputed marriages seem pretty pro-marriage.   Doubts about whether a couple is married tend to be resolved in favor of them being married—as long as they’re not the same sex. 

Going back to 1885, the Illinois Supreme Court said that “when a marriage is shown . . . the law raises a strong presumption in favor of its legality.”  They also said that “the burden is with the party objecting to its validity to prove that it is not valid.”

Another old Supreme Court case said:  “When the celebration of a marriage is once shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed.”

Other cases say that a marriage isn’t invalidated just because the person who “solemnized” it turned out not to have the legal or religious authority to perform marriages.  This suggests that a missing ingredient doesn’t necessarily mean you’re not married.

To resolve any doubt, you could file for divorce.  If your “spouse” contested, by claiming you’re not married, a judge would make the call.  The decision would be either (a) you’re married, and can get divorced; or (b) you’re not married, and don’t need a divorce.  If you’re “spouse” doesn’t want to be married, objecting to a divorce would just complicate things for you both.

Disputes about the validity of marriages, or the validity of divorces, seem to arise when somebody dies, and somebody else wants to inherit.  Then, heirs claim a widow was never validly married, and can’t inherit. Or, ex-spouses claim they were never really divorced, so they still get a spouse’s share.

In your case, if you simply decided for yourself that you weren’t married, and did nothing, your “spouse” could turn up later to try to claim a share of your estate.  Or, you could claim a share of theirs.  Then, a probate judge, rather than a divorce judge, could sort out the validity of your marriage.
 

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