Annulments: Void and Voidable Marriages
When most couples decide to part ways, they get a divorce, but an extremely small subset instead obtain annulments. However, a marriage may only be annulled if it is void or voidable. The two, despite their obvious similarities, are very different categories, and to state that your marriage falls under one when in fact, it is the other, can cause problems down the line.
In Illinois, an annulment is referred to as a judgment of invalidity and may be granted to those in void or voidable marriages. It is important to understand that they are not granted in the same manner as a divorce might be. Void marriages, under Illinois law, are those where the union was invalid from the beginning. Illinois law recognizes three major situations in which a marriage qualifies as void: bigamy, consanguinity, and incest. Generally, if a relationship goes against public policy or is generally against the law, it will be held to be void. Criminal charges may also result in extreme circumstances, but this is very rare.
It is not actually necessary to seek an annulment of a void marriage, given that by law, it never legally existed. However, many still decide to go through with the process so that there is a record of the legal dissolution of the marriage. Without a legal record, problems like asset division or child-related concerns may develop in the future.
By comparison, voidable marriages are those that were invalid when they took place but may be made right at a later date, either by action or inaction. Common examples of this include:
- Lack of consent. If it can be proved that one spouse was forced, coerced, or otherwise placed under duress in order for them to agree to the marriage, it will be held voidable. Valid marriages must be between two consenting adults who want no other benefit from the marriage. For example, a “green card marriage,” where a U.S. citizen marries a foreign national in order to allow that person to apply for a green card, is voidable if the fraud is discovered.
- Inability to consummate the marriage. Marriages, even in this day and age, require consummation, and if it cannot be achieved, the aggrieved spouse can petition for an annulment for up to one year after the marriage. If the spouse was aware of the inability to consummate the marriage, an annulment is not possible, because the spouse is held to have assumed the risk, in a manner of speaking.
- Lack of capacity. A person may not enter into a marriage if they are under the age of 18 and have not obtained parental consent. Either the person or their parent or guardian may seek an annulment, though it must be sought before the minor turns 18.
Be advised that if you are granted an annulment, any children born of your marriage will generally still be legitimate. The law sees no reason to punish children for the oversights or mistakes of their parents.
Contact a Family Law Attorney
In most cases, a divorce will best serve the interests of two people who wish to end their marriage. However, sometimes an annulment will be best, and if this turns out to be the case, the advice of an experienced divorce and annulment attorney can make a difference. Contact a skilled annulment lawyer in Geneva to discuss your case today. Call 630-232-9700 for a confidential consultation.