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The Declaration of Invalidity of Marriage and the Rights of the Putative Spouse

In Illinois, there are a few different ways to end a marriage. Though divorce is the most common route, it generally tends to be time-consuming, acrimonious, and expensive. For new marriages, there may be a less difficult way to end a marriage. In Illinois, a declaration of invalidity of marriage, also known colloquially as an “annulment,” may be allowed by the Court if one of the following elements were present at the time of the marriage:

  1. One or both of the parties was unable to consent to the marriage due to:
    • Mental incapacity;
    • A debilitating illness making it impossible to understand one's choices;
    • Incapacity from alcohol, drugs, or other incapacitating substances; or
    • An inducement into marriage due to force, duress, or fraud.
  2. One of the parties is unable to consummate the marriage by sexual intercourse due to a physical incapability and, at the time of the union, the other party did not know about this physical incapability;
  3. One of the parties was 16 or 17 years of age at the time of marriage and did not have parental or judicial approval; or
  4. The marriage is prohibited for some other reason, such as in the case of bigamy.

Time Sensitivity of an Annulment

With regards to timing, one of the parties (or his legal representative or guardian in the case of mental incapacity or infirmity) may bring an action for a declaration of invalidity of marriage within 90 days of discovering one of the elements enumerated above. However, an annulment may not be allowed after the death of either of the parties, if one of the first three elements are the reasons for the declaration.

Establishing Status as a Putative Spouse

Though there are reasons for an annulment to be sought, there are protections for the spouse who enters into a marriage believing that none of the above conditions are present and who believes that the marriage is completely valid. The spouse, in this case, is known as the “putative spouse,” and the Court, based on reasons of justness and equity, believes that he or she deserves legal rights that would normally be conferred onto a legal spouse. A spouse may show that he or she is a putative spouse if the following elements are proven:

  1. A marriage ceremony occurred between the couple;
  2. The couple cohabitated; and
  3. One or both of the parties had a good faith belief that they were legally married, even if they were not.

Legal Rights of the Putative Spouse

The status of the putative spouse is maintained throughout the entire time period in which he or she believed in good faith that the couple was legally married. The purpose of the putative spouse doctrine in Illinois is to protect the spouse who entered into the relationship believing that the marriage was valid, and was unaware that there were conditions that made the marriage subject to a declaration of invalidity. The putative spouse will have the legal rights to:

  1. Property acquired during the period that the spouse believed the marriage was valid;
  2. Alimony and support rights; and
  3. Inheritance in the case of the death.

These are just some of the legal rights that could be conferred onto the putative spouse. These rights, however, must be balanced and understood in comparison to any other spouse, legal or putative, that is also looking to receive compensation and property for the time in which the marriage was believed to be or actually was valid. This is to protect all spouses, legal or putative, who are subject to fraudulent marriage, and to ensure that they are taken care of once the real facts come to the surface.

Contact a Naperville Family Law Attorney

If you believe your marriage qualifies for an annulment or you have reason to believe you are a putative spouse, please contact one of our experienced Naperville family law attorneys who can evaluate your current situation and provide you counsel and guidance throughout your annulment process. Annulments are time-sensitive and our attorneys are ready to spring into action on your behalf.

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