What Is a Declaration of Invalidity of Marriage?

Kane County family law attorney

Sometimes, a marriage is doomed from the beginning for one reason or another. Some couples may find a glaring incompatibility, while others discover that their marriage is void (or voidable) as a matter of law. While, in theory, any married couple can file for divorce, in some cases, it may be easier or more fulfilling to obtain a declaration of invalidity of marriage in Illinois—especially if there is a legal impediment to your marriage and not just personal differences.

Grounds to Claim Invalidity

In Illinois, there are four grounds on which a person can petition to have their marriage declared invalid:

  1. The lack of capacity of either party to consent to the marriage due to a factor such as mental illness, fraud, or force;
  2. The inability of one party to physically consummate the marriage;
  3. One or both parties being underage and lacking the appropriate permission of their parent or guardian to marry; or
  4. The marriage being prohibited, such as if one party is already married.

There is a time limit during which a declaration of invalidity must be sought, and the actual length of time depends on the grounds for which the invalidity is alleged. For example, if one spouse is found to have lacked capacity to consent to the marriage, an annulment must be sought within 90 days. However, if the reason is that one spouse was underage or otherwise lacked their parent or guardian’s permission to marry, then that spouse or his or her guardian may petition for the declaration of invalidity until the spouse reaches the age at which the marriage would have been permitted regardless.

Divorce vs. Declaration of Invalidity

In this day and age, it is much more common to simply seek a divorce if a marriage is not working, but a declaration of invalidity may be more appropriate for a specific situation. If a marriage is valid—meaning there is no impediment to its creation like fraud or lack of capacity—it cannot be invalidated; the couple must seek a divorce to end such a marriage. It is only when a marriage is held to never have existed that a declaration of invalidity can be obtained.

If a marriage is not valid, it is generally recommended to get a judgment of invalidity because divorces are intended to serve as an end to a marriage. If you have a marriage that is void or voidable, it never technically existed in the first place. While divorces are generally easier to get than judgments of invalidity, some people do choose to obtain judgments of invalidity due to religious or legal concerns, especially regarding the position of their children. The children of a voidable marriage are considered legitimate under Illinois law.

Contact a Divorce Attorney

When you are seeking a divorce or a judgment of invalidity, the process can be exhausting and confusing. Fortunately, the dedicated Kane County family law attorneys at MKFM Law are here to help you. Contact us to set up a confidential consultation with an experienced member of our team today.



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