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Declaration of Invalidity of Marriage

A Declaration of Invalidity of Marriage, or what is commonly known as an "Annulment", refers to the legal procedure where a marriage is declared null and void. Unlike a divorce, an annulment is generally retroactive. An annulled marriage is considered invalid from the beginning. From a legal standpoint, the marriage never happened. Since love and people can be unpredictable, there are occasions where it is necessary to have a marriage declared invalid or annulled.

In Illinois, an annulment is covered under (750 ILCS 5/301), Declaration of Invalidity; which states: The court shall enter a judgment for invalidity of marriage (formerly annulment) for the following circumstances:

(1) One of the parties lacked the capacity to consent to marriage, either due to mental incapacity, physical weakness, or because they were under the influence of drugs or alcohol, or if one party was forced into marriage under duress or by fraud; or

(2) One party lacked the physical capacity to consummate the marriage through sexual intercourse and at the time of the marriage the other party was unaware of this physical incapacity; or

(3) One of the parties was 16 or 17 years of age and did not have the consent of their parents or a guardian or approval from a judge; or

(4) The marriage was prohibited.

Time Restraints for an Annulment

The amount of time a party has to bring such a suit depends on the basis of the annulment or Declaration of Invalidly of Marriage.

There is very little time, for example, to bring a suit for invalidly of marriage based on a spouse's capacity to marry. A suit for invalidly of marriage based on paragraph (1) of Section 301 must be started no later than 90 days after the discovery of the spouse's inability to enter into the marriage. Because a spouse's capacity to consent is at issue in the case; actions brought pursuant to capacity grounds are often brought by the Petitioner's legal representative, such as a parent or guardian.

The time limits to pursue a cause of action for invalidly of marriage for other grounds are a little more forgiving. A suit for a Declaration of Invalidity due to a spouse's lack of physical capacity to consummate the marriage through sexual intercourse as covered under paragraph (2), may be commenced up to one year after the petitioner gained knowledge of the condition.

For 16 and 17—year-olds, who marry without the consent of their parents or legal guardian; the time to begin a suit for Declaration of Invalidity varies depending on the age of the minor spouse. Under these circumstances, the underage party, or their parent or guardian, may commence suit prior to the date on which the minor reaches majority.

There is no time bar to file a suit for a Declaration of Invalidly of Marriage based on the grounds set forth in paragraph (4) "prohibited marriage". At any time, either party can seek a Declaration of Invalidity of Marriage if the marriage is prohibited by law. A classic example of a prohibited marriage is bigamy.

As an overriding prohibition, the death of either party to the marriage is an absolute bar to proceeding under subsections (1) Capacity, (2) Consummation of the Marriage, or (3) Minors who marry without the consent of their parents or guardians, of Section 301.

Section 304 - Retroactivity. Under Illinois' law, unless the court finds after careful consideration of all relevant circumstances, that the interest of justice would be better served by making the judgment not retroactive, the court will declare the marriage invalid as of the date of the marriage. All children born or adopted during the marriage, however, are legally children of the parties and are still owed a duty of support regardless of whether a marriage is declared invalid.

Rights of a Putative Spouse

Section 305 of the Illinois Marriage and Dissolution of Marriage Act governs the issue of a "Putative Spouse." If a party, after participating in a marriage ceremony, lives with their "spouse" based on the good faith belief that they were legally married; to only later discover that they are not legally married but are considered a "Putative Spouse."

Under this section, a putative spouse acquires all the rights given to a legal spouse; including the rights to maintenance following the termination of their status. The Putative Spouse acquires these rights regardless of whether their marriage is prohibited by law. If there is a legal spouse or another putative spouse, however, the rights acquired by a putative spouse do not supersede the rights of a legal spouse or the rights acquired by other putative spouses.

The Punitive Spouse can acquire rights to assets of the other Putative Spouse until they obtain knowledge of the fact that they are not legally married. As this point, the Putative Spouses rights terminate and he or she is prevented from acquiring further rights. The Putative Spouse has an equitable claim to all property acquired during the relationship from the date of the wedding ceremony to the date of discovery that the marriage is invalid.

Are you seeking an annulment in Batavia?

If you are seeking or defending an annulment, it's important to have a knowledgeable and experienced Batavia divorce attorney assisting you through the process as the laws pertaining to annulment are complicated. With an office in Batavia, Illinois, I practice in Batavia and surrounding areas. I have extensive experience handling all aspects of annulments and divorce and am well-versed in Illinois matrimonial laws. If you have questions or concerns or would like to get started moving on your annulment, please contact me, Michael T. Schulenberg, Attorney at Law today.

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