Marriage and Annulment

updated 20 September 2019

by Wes Cowell

 

An annulment makes it as though you were never married.  Illinois law allows annulments only on certain, specific "grounds" and the time limits can be tight.  Need advice?  Callleave your info, or schedulescheduleschedule a consult.

 

Under Illinois law (750 ILCS 5/301), an annulment is a "Declaration of Invalidity of Marriage."  The court makes it as if the parties were never married.  "An annulment of a marriage is a judicial determination that no valid marriage ever existed."  In re:  Marriage of Igene, 2015 IL App (1st) 140344 (Ill. App., 2015), citing Long v. Long, 15 Ill. App. 2d 276, 285 (1957).  The court can give you a civil annulment and your marriage will be wiped off the State’s books.  As far as the government is concerned, it will be as if you were never married. Religious records can also be cleaned, but the court can’t do that for you.  If you had a religious ceremony, your religion may view you as "married" (notwithstanding the civil annulment) and unable to again marry within that religion.  Check with your clergy about annulling your marriage within your religion.

 

There are only a few situations that warrant a Declaration of Invalidity and they each have a fairly short time limit after the marriage ceremony within which a case must be filed.  If you let the deadline pass, you give up your right to a Declaration of Invalidity and you must stay married or seek a legal separation or a divorce.

 

We get a lot of calls from folks who want an annulment. Almost none qualify because the requirements are so difficult to satisfy.  If you’re thinking about an annulment, you probably need to think about a divorce.

 

The grounds declaring a marriage invalid specified under Illinois law (and the time limits by which a case must be filed) are:

 

  • Coercion or duress (the classic "shotgun wedding").  Within 90 days of learning of the condition.

 

  • Mental incapacity (either due to mental deficiencies or the influence of alcohol or drugs).  Within 90 days of learning of the conditionDennis Rodman and Britney Spears have both used this defense (Rodman dropped his case and stayed married to Carmen Electra for six more months before divorcing).

 

  • Fraud. Within 90 days of learning of the condition.  Under Illinois' annulment law, the term "fraud" refers to a fraud involving "the essentials of the marriage."  It has nothing to do with false representations as to fortune, character, or social standing see, Bielby, below).  If you thought you were marrying a millionaire but really you married a bum; congratulations, you're married to a bum and there's no way out but divorce.  Annulment claims based on fraud are handled on a case-by-case basis; so a little history is helpful:

 

Lyon v. Lyon (1907):  In the granddaddy of Illinois annulment cases (husband sought annulment due to wife's concealed epilepsy -- it was a crime in some states to have sex with one afflicted with epilepsy but not in Illinois, the husband lost), the Illinois Supreme Court referenced old cases and authorities from early America and England, saying:

 

As to fraud, in order to vitiate a marriage, it should go to the very essence of the contract. * * * Fraudulent misrepresentations of one party as to birth, social position, fortune, good health, and temperament cannot, therefore, vitiate the contract.   Caveat emptor is the harsh, but necessary, maxim of the law.’ Schouler on Domestic Relations, par. 23.   ‘In that contract of marriage which forms the gateway to the status of marriage, the parties take each other for better, for worse, for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or, indeed, generally, from fraudulent practices in respect to the character, fortune, health, does not render void what is done.   Thus, the qualities just mentioned are said to be accidental, not going to the essentials of the relation; and Lord Stowell, after remarking that error about the family or fortune of an individual, though produced by disingenuous representations, does not affect the validity of the marriage, adds:   ‘A man who means to act upon such representations should verify them by his own inquiry.  The law presumes that he used due caution in a matter in which his happiness for life is so materially involved, and it makes no provision for relief of a blind credulity, however it may have been produced.’'  1 Bishop on Marriage and Divorce, par. 167.   ‘It is well understood that error, and even disingenuous representations, in respect to the qualities of one of the contracting parties, as to his condition, rank, fortune, manners, and character, would be insufficient.  The law makes no provision for the relief of a blind credulity, however it may have been produced.’  2 Kent's Commentaries, 77.   ‘The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient ground for the annulment of a marriage.   It is not sufficient that the party relied upon the false representations and was deceived, or that important and essential facts were concealed with intent to deceive.   The marriage relation is a status controlled and regulated by consideration of public policy, which are paramount to the rights of the parties. * * * The fortune, character, and social standing of one of the parties are not essential elements of marriage, and it is contrary to public policy to annul marriages for fraud or misrepresentation as to such personal qualities.’ 19 Am. & Eng. Ency. of Law (2d Ed.) 1184.

 

        Concealment of the fact that the woman had previously been insane has been held insufficient to justify a decree of nullity of marriage. Cummington v. Belchertown, 149 Mass. 223, 21 N. E. 435,4 L. R. A. 131.   So has concealment of kleptomania. Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323,9 L. R. A. 505, 20 Am. St. Rep. 559.   Also concealment by a woman of unchastity prior to marriage.  Leavitt v. Leavitt, 13 Mich. 452; Allen's Appeal, 99 Pa. 196, 44 Am. Rep. 101; Varney v. Varney, 52 Wis. 120, 8 N. W. 739,38 Am. Rep. 726.   Also concealment of a prior marriage. Donnelly v. Strong, 175 Mass. 157, 55 N. E. 892;Fisk v. Fisk, 6 App. Div. 432,39 N. Y. Supp. 537.   Also concealment of the birth of an illegitimate child prior to marriage. Farr v. Farr, 2 MacArth. (D. C.) 35; Smith v. Smith, 8 Or. 100.   The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation-of something making impossible the performance of the duties and obligations of that relation, or rendering its assumption and continuance dangerous to health or life.   Smith v. Smith, 171 Mass. 404, 50 N. E. 933,41 L. R. A. 800, 68 Am. St. Rep. 440; Ryder v. Ryder, 66 Vt. 158,28 Atl. 1029,44 Am. St. Rep. 833; Cummington v. Belchertown, supra.   The case of Gould v. Gould, 78 Conn. 242, 61 Atl. 604,2 L. R. A. (N. S.) 531, is not inconsistent with these rules, though it was there held that concealment of epilepsy was such a fraud as would justify a decree of divorce under the statute of that state forbidding marriage or sexual intercourse by or with an epileptic under penalty of imprisonment. . . .    The Supreme Court of New York, in Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 67 N. E. 63,63 L. R. A. 92, 95 Am. St. Rep. 609, held that the representation by a woman to a man that she had given birth to a child of which he was the father and which she purported to exhibit to him, when in fact she had not given birth to a child, was such fraud as to justify the annulling of a marriage brought about thereby. This representation is similar in kind to that of a pregnant woman, who induces a man with whom she has had illicit intercourse to marry her by the false representation that he is the father of her child. But such representation, under such circumstances, does not constitute fraud for which the marriage will be annulled, and we regard the decision in the Di Lorenzo Case as opposed to the weight of authority. Franke v. Franke (Cal.) 31 Pac. 571,18 L. R. A. 375; Foss v. Foss, 12 Allen (Mass.) 26;Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98.

 

Lyon v. Lyon, 230 Ill. 366, 82 N.E. 850 (Ill., 1907).

 

Wolfe v. Wolfe — Fraud As To the Essentials of the Marriage (1907):  James Wolfe, a devout Roman Catholic, wanted to marry Judy in 1963 but, as she had previously married and divorced, his religion forbade his union to her.  One day Judy told James that her first husband died.  That meant they could marry.  Judy converted to Roman Catholicism, signed a "sponsa" in which she swore her first husband was dead, and she even showed James what she claimed was her first husband's death certificate.  James and Judy married in 1965 and had a child the following year.

 

They separated in 1973 and, in 1974 James learned that Judy's first husband was still alive.  Mary filed for divorce, and James sought an annulment.  He even called the first husband as a witness.  James won, Judy appealed and lost, and the case was bumped up to the Illinois Supreme Court, which said:

 

The evidence in this case clearly and convincingly showed that plaintiff had perpetrated a fraud upon defendant in order to obtain his consent to the marriage. Although such fraud would render the ordinary contract void, a marriage contract can be voided only if the nature of the fraud itself affects the essentials of the marriage. What constitutes the "essentials" of marriage cannot be expressly delineated, for what is essential to one marriage may not be equally significant to another. Whether a fraud goes to the essentials of a marriage must be determined on the basis of the facts in an individual case.

 

Wolfe v. Wolfe, 76 Ill 2d 92, 96 (1979).

 

Bielby v. Bielby — Golddigger Dodges Annulment -- False Representation as to Fortune, Character, and Social Standing (1929);  Joseph Bielby owned some farm land and lived near Amelia, who worked a farm, herself.  When he was 60 and she was 40, they married only after he promised to put his 40 acre farm in joint tenancy with her.  They never consummated the marriage and never lived together.  Joseph's brother reported that he saw Amelia with a younger, handsome man and Joseph realized he might, literally, lose the farm.  Joseph sought an annulment.  He lost.  The appellate court said:  "False representations as to fortune, character, and social standing are not essential elements of the marriage, and it is contrary to public policy to annul a marriage for fraud or misrepresentations as to personal qualities."  Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231 (Ill., 1929)

 

Louis v. Louis False Promise of Children (1970):  Husband promised wife he would consummate the marriage and they would have children.  After the she learned that her husband never had any such intentions.  For his part, he blamed her.  The marriage was never consummated.  The wife obtained her annulment.  The appellate court said "We feel no need to detail the evidence but believe it is sufficient to say that the decree of the court is based on ample evidence."  Louis v. Louis, 124 Ill.App.2d 325, 260 N.E.2d 469 (1st Dist., 1970).

 

Hill v. Hill — False Claim of Pregnancy (1979):  Roberta and William Hill knew each other in the biblical sense and Roberta reported she was pregnant.  They married and William soon concluded Roberta was not pregnant and he had been duped.  He sought to annul the marriage.  He lost.  The appellate court said:

 

 

Generally, the courts hold that representation of false pregnancy does not go to the essentials of the marriage since the wife is not prevented from performing her marital duty of bearing only the children of her spouse.  Relative to the doctrine of pari-delicto, courts will not extricate the defendant who has created his own dilemma based on his illicit intercourse.  We hold as a matter of law that a woman's fraudulent representation of pregnancy which induces a man to marry her is not grounds for annulment.

 

Hill v. Hill, 398 N.E.2d 1048, 79 Ill.App.3d 809, 35 Ill.Dec. 98 (Ill. App. 1 Dist., 1979) (citations omitted)

 

In re:  Marriage of Igene — Concealment of Prior Marriages Insufficient for Annulment (2015):  Taisheka met "Pastor Joshua" Courage Igene and they got to know each other, quite well.  Courage did not disclose that he previously had married and divorced three times.  His second and third marriages had been bigamous.  By the time he married Taikesha, however, all of his previous marriages had been dissolved.  When Taisheka learned of his illustriuous past, shesought an annulment.  The appellate court said "under the circumstances in this case we do not believe the respondent's concealment of his previous marriages amounted to fraud going to the essentials of the parties' marriage contract. . . . .'  The general rule in American jurisdictions is that misrepresentation or concealment of prior marital status is not ground for annulment or marriage.'"  Igene v. Igene, 2015 IL App (1st) 140344 (Ill. App., 2015), quoting J. Evans, Annotation, Concealment of or Misrepresentation as to Prior Marital Status as Ground for Annulment of Marriage, 15 A.L.R.3d 765 (1967).

 

  • Physical incapacity to consummate the marriage by sexual intercourse.  Within one year of learning of the condition.  The condition must have existed at the time of the marriage and the other spouse must not have been aware of this condition.

 

  • One party was 16 or 17 and did not have parental (or a guardian's) consent nor judicial approval.  Prior to the minor's 18th birthday.  Personally, I think this law needs to be changed to give an 18 year old a few months to file an annulment suit.  As the law stands, the rationale is that the child -- a minor -- can hire a lawyer, file an annulment case, and fight to undo the marriage on his or her own.  To me, that's crazy.  A minor cannot contract to marry without parental consent.  A minor cannot contract to retain an attorney.  Indeed, a minor cannot contract to do anything -- contracts with minors are invalid and unenforceable.  Why, then, does the law place the onus on the minor spouse to have the wherewithal to seek an annulment and deprive the same individual the legal avenue the day of attaining majority?  It doesn't make sense.   

 

  • The marriage is otherwise prohibited (parents marrying children, aunts marrying nephews, etc.).  At any time or, by a child of either party within 3 years of the death of the first party to die.

 

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