Annulments: Void vs. Voidable Marriages in Illinois and Why It Matters

 Posted on August 27, 2015 in Annulment

Divorce is not the only way to end a marriage. In certain limited circumstances, a marriage can be dissolved through an annulment. An annulment is a powerful judicial decree since it declares that no valid marriage ever existed. While an annulment does not generally affect the rights of any children born to the couple prior to the annulment, having a marriage declared invalid through annulment can affect any division of any property the couple acquired during the “marriage” and generally will prevent one party from receiving spousal support from the other.

The Difference between Void and Voidable Marriages

There are two types of marriages that can be annulled: void and voidable. A void marriage is one that is illegal from its inception and cannot be rectified. A voidable marriage, however, is one that is invalid at the moment of marriage but that can later be made valid through the consent or inaction of the parties. In other words, if an annulment is not promptly sought, it might not be available later.

How Can a Marriage Be Annulled

Either party or in some cases a third party related to one of the spouses can file a petition with the court to annul a marriage. A void marriage can be annulled at any time (technically, it does not have be declared invalid by a court because the law already declares such marriages invalid), while a petition to annul a voidable marriage must be brought within a specific time frame.

• Illegality (void marriage): A marriage is annulled on the basis of illegality where it violates some strong public policy or law. Currently in Illinois an illegal marriage is one where one spouse is already legally married to some other person (bigamy) or where the spouses are close relatives of one another (incest). Because illegal marriages are void, the marriage is invalid from its inception and this cannot be rectified.
• Lack of consent (voidable marriage): If a spouse could not consent to the marriage due to disability, the influence of drugs or alcohol, or because he or she was under duress or defrauded, the marriage can be annulled within 90 days of the date either spouse learns of the issue. After that time, the marriage becomes valid. A petition for annulment can be brought by a parent or guardian of someone who is disabled.
• Underage (voidable marriage): If at least one of the spouses married while under the age of 18 years and he or she did not have the consent of his or her parents, the marriage is voidable and can be annulled until the child’s 18th birthday. Again a parent of an underage spouse may also bring a petition for annulment during this time.
• Inability to consummate (voidable marriage): If a marriage has not been consummated because of one spouse’s inability to engage in sexual intercourse, the other spouse may petition for an annulment up to one year after learning of the situation. An annulment is not available if the other spouse knew of the condition prior to the marriage.

Seek Help from an Experienced Family Lawyer

Annulments are no easier to obtain than a divorce. Before rushing to the courthouse to have your marriage annulled, speak with one of our passionate DuPage County family law attorneys. We can evaluate your case, help you determine if annulment is available and the right path for your situation, and file the appropriate paperwork.