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Invalid and Prohibited Marriages in Illinois

Posted on in Family Law

DuPage County family lawyers, invalid and Prohibited MarriagesMarriage laws vary by state, but all states prohibit some kinds of marriages. Some people start the divorce process only to find out that their marriage is actually invalid. Conversely, a couple may want to marry but later find out that they cannot. It is important to understand the laws in Illinois and what marriages are prohibited.

Invalidity and Prohibition

In Illinois, marriages that are not permitted are termed invalid. In order for a marriage to be declared invalid, Illinois law allows certain people to file a petition for a Declaration of Invalidity of Marriage. Depending on the circumstances, certain aspects of the marriage may still apply.

Prohibited marriages are marriages that are prohibited by law and not allowed to happen in the first place if the clerk knows the circumstances. The distinction between invalidity and prohibition may seem minor, but it is important to understand this difference in order to comprehend Illinois’ marriage law.

Prohibited Marriages

Illinois law declares some marriages as prohibited. These include the following situations:

  • One party is still married to someone else;
  • The marriage is between certain family members: whole, half, or adopted brothers and sisters and ancestors and descendants;
  • The marriage is between uncles and nieces and aunts and nephews. This would now also include nephews and uncles and aunts and nieces; and
  • Marriages between first cousins unless both parties are 50 years or older, or one of the parties has a signed statement from a doctor saying that he or she is infertile.

With a prohibited marriage a number of people can apply for a declaration of invalidity. This includes either party, the original spouse in the case of bigamy, the State’s Attorney, or a child of either party. Any of these people have until three years after the death of one of the spouses to file.

Invalid Marriages

There are certain conditions that will allow a party to be eligible to get a declaration of invalidity. These marriages are presumptively valid unless a declaration of invalidity is filed. Invalid marriages include those that involved:

  • Lack of capacity, whether because of mental disabilities or intoxication;
  • Fraud or duress regarding the “essentials of marriage.” This is incredibly fact specific, but courts usually construe this section extremely narrowly;
  • One party being unable to consummate the marriage through sexual intercourse, where the other party did not know about this at the time of the marriage; or
  • One of the parties being 16 or 17 at the time of the marriage and not possessing parental consent.

For lack of capacity or fraud grounds of invalidity, either party or the representative of the person who lacks capacity can file for a declaration of invalidity. They must file within 90 days of learning about the situation. Either party can file for invalidity if there is an inability to consummate the marriage. He or she has until one year from when they discovered the condition. With underage marriages, the parties or the parents of the underage party can file for invalidity until the underage party reaches the age of consent.

DuPage County Family Law Attorneys

If you have questions about a potential or current marriage you should contact our passionate DuPage County family law attorneys at Davi Law Group, LLC. We can help you find out the status of your marriage and guide you through the legal process.


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