Alternative to Divorce

The Law Offices of Van A. Schwab Feb. 18, 2022

Formerly known as an annulment, instead of going through divorce proceedings you may be able to receive a declaration of invalidity. In order to have a declaration of invalidity you must meet 1 of the 4 grounds laid out in 750 ILCS 5/301 of the Illinois Marriage and Dissolution of Marriage Act. The four grounds are as follows:

  • A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental capacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;

  • A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;

  • A party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or

  • The marriage is prohibited.

The ground of inability to consummate the marriage has a statute of limitations of one (1) year once it is known that the marriage cannot be consummated. Some examples of relationships that could be considered illegal are incest or bigamy. Most importantly, for a marriage to be able to be declared as invalid the reason 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. Louis v. Louis, 260 N.E.2d 469 (1st Dist. 1970).