Marriage Formalities In Illinois
If you don't follow the rules, your marriage won't be valid. Common law marriage is still possible, in Illinois. Work with a lawyer! Can't find the answer? Need advice? Call, leave your info., or schedule a consultation.
Marriage: Illinois' laws on marriage are about as simple and straightforward as they get. Those 18 and older may marry without parental consent. Kids aged 16 to 18 need the consent of both parents (only one parent is necessary if one cannot be located or has died) or judicial approval. 750 ILCS 5/208. Nothing says kids under the age of 16 cannot marry; but nothing says they can, either -- so they can't. To get married, both parties must personally appear before the county clerk (yes, you BOTH have to go), fill out and sign an application, and pay a nominal fee. 750 ILCS 5/203.
Once both parties appear at the Clerk's office and the application has been completed, signed, and the fee paid, the Clerk issues a marriage license and a marriage certificate. The license becomes effective the day AFTER its issuance but, if you're in a rush and just HAVE to do everything in the same day, some counties have a judge on duty who can waive the "license-isn't-good-until-tomorrow" restriction. 750 ILCS 5/207. Moreover, there is case law that says this one-day waiting period is a trivial technicality and not to be paid too much attention. In In re: Simpson Driskell, Jr. (a probate case), a marriage was performed the same day that the license was issued. On the license was typed the word "WAIVED." It seemed like maybe a judge waived the "wait-a-day" requirement, but there was no record of that and there was no court order saying so. No one could find a judge who could remember waiving the restriction. In fact, testimony at the trial was that no judge waived the "wait-a-day" requirement. Nevertheless, on appeal, the appellate court said that the trial court ". . . ruled that any failure to wait until [the next day] to have the marriage performed did not invalidate the marriage. We agree." So, if you get your license and get married on the same day, your marriage is probably valid; thanks to Simpson Driskill's widow.
There are cases, too, where no marriage license exists at all. Those cases, however, all sound in probate where one spouse dies and the surviving spouse must fight in court to keep property (from children of the deceased's prior marriage) or get property (like, a surviving spouse's share of a pension) AND the marriage took place out-of-state. See, for example, In re: Estate of Baily, In re: Estate of Hall, and Patek v. Peick.
Your marriage license will be good for 60 days and is good only in the issuing county. If you want to get married in some State Park or at grandpa's farm, you've got to go to the County Clerk's office in that county to apply for your marriage license and certificate. If you get a license from county A, and get married in County B, that invalidates the license . . . and the marriage. 750 ILCS 5/207.
After the ceremony, the person solemnizing the marriage (or if there isn't one, then the married couple) completes the "certificate" and sends it to the county clerk within ten days. The clerk then has 45 days in which to report the marriage to the Department of Public Health. For a few extra bucks (depending on the county), you can get a Marriage Certificate to hang on the wall or carry in your wallet.
Restrictions: There are a few prohibitions to marriage: Married persons (or those "civilly unioned") may not marry another until their prior marriage (union) is dissolved. 750 ILCS 5/212. A couple "civilly unioned" may marry each other, of course, to convert their civil union to a marriage. Ancestors may not marry descendants, uncles and aunts may not marry nieces and nephews. 750 ILCS 5/212. Cousins may marry, so long as they're both at least 50 years old or one of them is sterile. 750 ILCS 5/212.
Children born to or adopted into prohibited marriages are considered by the law to be the legitimate offspring of the defective marriages. This affords the children all of the rights of children born to legitimate marriages (why should they pay the price if their parents' marriage is somehow invalidated?). Imagine a case where first cousins under the age of fifty, both fertile, married. They conceive a child, the "wife" (she's not really a wife because the marriage was invalid) gives birth, and then the husband dies. The child would inherit everything and the "wife" would be left with no inheritance due to the invalid marriage.
Same-Sex Marriage and Civil Unions: Illinois adopted its civil union law 1 June 2011. Illinois' same-sex marriage law was signed into law in November, 2013, but wasn't to take effect until 1 June 2014. A federal judge, however, ruled in February, 2014 that there was no need to delay the implementation of the law, and same-sex marriage has been the law of the Land of Lincoln since 21 February 2014.
Civil unions grant couples all the benefits of marriage under ILLINOIS law. They lose out, however, on a lot of benefits under federal law and other states may not recognize the civil union. Why anyone would prefer a civil union over a marriage is beyond me, but people do it. A couple may convert a civil union to a marriage by getting married (see above: fill out an application, pay the fee, pull a license, hold a ceremony, send in the certificate).
Discrimination Against Same-Sex Marriage Still Alowed: Illinois passed a law in 2016 (750 ILCS 5/209 (a-5) and (a-10)) that allows "any religious denomination or Indian Nation or Tribe or Native Group, or any minister, clergy, or officiant acting as a representative of a religious denomination of Indian Nation or Tribe or Native Group," to discriminate against same-sex marriages. The law says those groups and individuals are "free to choose which marriages [they] will solemnize." They also may pick and choose which marriages to allow to be celebrated in their "churches, mosques, synagogues, temples," etc. if it would violate their religious beliefs.
Bigamy and Polygamy: Bigamy is, of course, being married to two people at the same time and polygamy occurs where a person has several spouses. Illinois, like all states, prefers monogamy and has outlawed bigamy and polygamy. Bigamy and polygamy are crimes in this state. Bigamy is a Class 4 felony (1 -3 years in prison and up to $25,000 fine), and knowingly marrying a bigamist is a Class A misdemeanor (up to a year in jail and up to a $2,500 fine).
If your spouse marries someone else, your marriage is unaffected and the second marriage should be declared invalid. If, however, you find out that your spouse was previously married to someone else when he or she married you, you've got a problem. Your marriage is not entirely secure. The defect can be cured, (that's the word lawyers and judges use: "cured") however, by dissolving the first marriage. Upon the finalization of the divorce, the second marriage is said to have been "cured" and is, from that point on, valid.
As America's population lives longer and becomes more mobile, the problem is becoming more common. Many people marry, split up, relocate, and ten or twenty years later marry again. In such cases, the second spouse is only a "putative spouse" and the first spouse stands in the better position. Consider the case of poor Anna Kuznar. In 1953, Mitchell Kuznar married a young woman named Emilia in a religious wedding in a Catholic church in Krakow, Poland. They had a son, Thomas. Unhappily, the marriage didn’t last. Rather than go through the formalities and cost of an annulment, however, young Mitchell simply left Emilia and moved to America. In the United States, Mitchell met Anna and, in 1971 they married. Mitchell could have divorced Emilia in the U.S. at any time. Mitchell died in 1995. Anna tried to collect his estate but she was merely a "putative spouse" – Emilia was his real spouse. Sixteen years later (in 2011 -- and Emilia died in 2006), Anna was still fighting with Thomas over Mitchell's retirement benefits.
Marriage by Proxy: Soldiers and sailors used to have the opportunity to marry their homeland sweethearts "by proxy." A friend would stand in for the soldier-groom and the marriage was considered valid. Illinois no longer recognizes such marriages. Both parties have to be present and actively engaged in obtaining the license and certificate . . . as well as the marriage ceremony.
Common Law Marriages and Cohabitation Agreements: Common law marriages are still recognized in ten states and the District of Columbia. In the spring of 2015, a very big case about common law marriage was working its way through the Illinois Appellate and Supreme Court. The law might change, soon -- and read my article on Common Law Marriage for more information.
Since the beginning of the last century, however, the law in Illinois has been: if you don't satisfy the requirements of the law, you are not married. No matter how long you've lived together, no matter what you told everyone, no matter that you exchanged rings and vows . . . if you didn't follow the requirements of the law you would not enjoy the legal benefits of marriage. Children born to, or adopted by, common law marriages, however, were and are considered "legitimate" under Illinois law.
This area of the law is changing, however, and folks are coming up with creative ways to recover their fair share of the assets even though they never married. See my article on Common Law Marriage.
Foreign Common Law Marriage: If you establish a common law marriage in a state that recognizes common law marriages, Illinois may recognize the marriage if you later move to Illinois. Illinois courts hate to do this, however, so you have to be very careful that you meet all the technical requirements of your foreign common law marriage.
Bernard Newton and Mamie Lehman, for example, lived together for many years in Iowa. They filed taxes "married filing jointly;" Bernard filed bankruptcy and listed Mamie as his wife, they borrowed money together as "husband and wife;" and Bernard even filed for divorce in Iowa. They reconciled and then, in the late 1960s, they moved to Illinois. Before long, Mamie wanted to divorce and claim her marital rights to their property. Bernard objected and said that when they first started cohabiting, he didn't THEN intend to be married. That was a requirement under Iowa law, and there was no evidence about Bernard's intent except his own testimony . . . so, ultimately, Mamie lost.
The same thing happened to Lori Mosher in 1993: she thought she and her "husband," Alphonso Vera, were common law married in Iowa. They moved to Illinois and split up. Lori wanted to divorce. "Nice try," said Alphonso "but we never married." Lori tried, but failed, to prove to the Illinois judge that a common law marriage existed in Iowa (she proved only two of the three requirements under Iowa law; missing the "present intent" element that sunk Mamie Lehman). Even though she lost, Lori Mosher's case is important; because the appellate court said: "Illinois has abolished common law marriages. (Ill.Rev.Stat. (1991), ch. 40, par. 214). However, where the parties reside in another state at the time of contracting a common law marriage that was valid in that state, such marriage will be considered valid here upon their removal to Illinois." In re: Marriage of Mosher and Vera.
If you live in Illinois and move to a state that recognizes common law marriage knowing you'll move back to Illinois, you cannot establish a common law marriage while you're in the other state.