Family & Safety

In Illinois, a “Declaration of Invalidity of Marriage” is a court order that says the marriage was not valid from the beginning and therefore should not be recognized by the state. It is more commonly known as an “annulment.” Annulments are rare in Illinois.

When an annulment is granted, the marriage will typically be treated as though it never existed in the first place. However, a judge can consider all the relevant information and the effect on third parties in deciding whether or not to make the annulment judgment retroactive.

There are specific requirements to be eligible to get an annulment in Illinois. There are only four possible grounds for an annulment:

• One spouse could not consent to be married;
• One spouse cannot consummate the marriage (have sexual intercourse);
• One spouse was underage; or
• The marriage was illegal.

If an annulment is not a possibility, a separating couple can file for a divorce to end the marriage.

One ground for annulment in Illinois is that one spouse could not consent to be married. This can be because of:

• Mental incapacity;
• Influence of drugs, alcohol, or other incapacitating substances; 
• Force or duress; or 
• Fraud involving the “essentials” of marriage. This includes lying or leaving out important, fundamental information that affected the decision to marry, such as omitting that a spouse cannot have children.

A petition for annulment can be filed by either spouse or the legal guardian of any spouse who lacks the capacity to consent. It must be filed within 90 days of the date the filer discovered the lack of consent.

 An annulment cannot be filed if one of the spouses has already died.

Another ground for annulment is that a spouse lacks the physical ability to consummate the marriage. In other words, the spouse cannot have sexual intercourse. At the time they got married, the other spouse did not know this. The filing spouse must file for an annulment within one year of discovering this inability.

An annulment cannot be filed if one of the spouses has already died.

In Illinois, children under the age of 16 cannot get married. Children ages 16 or 17 can get married if they have consent from both parents, a legal guardian, or a judge. At age 18, a person is considered an adult and can get married on their own without anyone else’s consent.

An annulment can be given when at least one of the spouses was 16 or 17 years old and did not have consent from a parent, guardian, or judge to get married. The spouse, their parent, or their guardian must file for the annulment before the time the underage spouse reaches the age at which they could have been married without getting the consent. In other words, the annulment must be filed before the spouse turns 18. 

An annulment cannot be filed if one of the spouses has already died.

One ground for an annulment is that the marriage was an illegal marriage. This means that the marriage itself violates a law. 

An example of a prohibited marriage is one in which one spouse was already married to someone else when they married again (bigamy). Suppose Spouse A marries Spouse B. Spouse B was married to Spouse C and never got a divorce before marrying Spouse A. Spouse A and Spouse B therefore have a prohibited marriage. Once Spouse B and Spouse C get divorced, the marriage between Spouse A and Spouse B will become valid.

When filing for an annulment due to bigamy, it is a good idea to talk to a lawyer first.In Illinois, bigamy can be a crime. The spouse committing bigamy (Spouse B in the example above) can be charged with a Class 4 felony. A spouse who knowingly marries a bigamist (Spouse A) can be charged with a Class A misdemeanor unless:

• The prior marriage was dissolved or annulled,
• The new spouse (Spouse A) reasonably believes the prior spouse (Spouse C) was dead,
• The prior spouse had been continually absent for five years, during which time the new spouse did not know the prior spouse was alive, or
• The new spouse reasonably believed that they were legally able to marry the bigamist.

Another example of an illegal marriage is one where the spouses are closely related by blood or adoption. This includes marriage between:

• An ancestor and descendant (parent and child, grandparent and child) or between siblings, either whole blood, half blood, or adoption;
• An uncle/aunt and niece/nephew, either whole or half blood; or
• First cousins, unless both spouses are at least 50 years old or at least one of the spouses is permanently sterile.

An annulment in this case can be filed by:

• Either spouse;
• The previous legal spouse (for bigamy);
• The State’s Attorney; or
• A child of either spouse.

The annulment must be filed within three years following the first spouse to die.

A divorce is when two people with a valid or legitimate marriage decide to end their marriage. An annulment is when a judge decides the marriage was not valid or legitimate to begin with. 

An annulment is not easier to get than a divorce. However, unlike in a divorce, the court cannot order the division of marital property or spousal maintenance payments in an annulment, as there was no marriage in the first place. However, the exception to this rule is if the spouse is a “putative spouse.”

A “putative spouse” is a person in an annulled marriage who had a marriage ceremony and who lived with their spouse believing “in good faith” that they were legally married. The putative spouse gets the rights of a legal spouse in this instance, including the division of property and spousal maintenance payments (alimony).

No. The rights of the children do not depend on whether their parents’ marriage is valid. They will have the same rights as children born or adopted during a valid marriage. For instance, they will be able to get child support from both parents and inherit property at the death of either parent.

Yes. Legal annulments are ordered by judges in a legal case. If an annulment is granted at the end, the marriage will no longer legally exist.

In contrast, religious annulments are handled by religious officials with different procedures, requirements, and rules. They do not affect the legal validity or legitimacy of the marriage. If the spouses in a religious annulment case also want to legally end their marriage, they must also either get a legal annulment or a divorce.

Spouses can learn more about annulments at:

• Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/301 (annulments)
• Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/212 (prohibited marriages)
• Illinois Criminal Code of 2012, 720 ILCS 5/11-45 (bigamy)

As with divorce, in agreed, simpler, less complicated cases where there is not much property or debt, a lawyer may not be necessary. For instance, spouses who do not own a house or have substantial debt and who agree to the annulment and to dividing property and debt may be able to do so with minimal help from a lawyer.

If the annulment is on the grounds of bigamy, talking to a lawyer about any possible criminal implications is a good idea.

In addition, a lawyer is recommended in situations where:

• The annulment is contested: the spouses cannot come to an agreement on major issues involving children, property, or debt;
• One spouse is represented by a lawyer: a pro se spouse is at a distinct disadvantage in an annulment if the other spouse is represented by a lawyer; or
• There is domestic violence involved in the relationship.

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