Annulment and Divorce: The More Things Change, the More They Stay the Same

Illinois marriage laws, Illinois divorce attorneyAs an ongoing project of the Illinois State Archives and the Illinois Genealogical Society, those interested in researching the civil unions of their ancestors can visit the homepage of the Illinois Secretary of State to view marriage records as far back as 1763. Although it appears that the concept of marriage has always been alive and well throughout the ages, it does leave one wondering how many of these marriages either dissolved in some form of divorce or lasted a lifetime until death do they part? The latter is most likely the correct assumption.

In the 1700’s and even more so in the earlier days of man, women feared what could happen if they dared to escape their marital bonds as the cost was high. During this time, the wife, as well as all children, were considered the inherent property of the husband and if scorned, the women could be left desolate. Often the wife’s family would also distance themselves from her plight as they would side with the husband’s side of the family either to safeguard relationships with grandchildren or they were financially beholden to the husband. The vast majority of these wandering women were lost to prostitution, starvation, or death by their own hand.

These dire circumstances could be avoided and a divorce or annulment granted if it could be proven to the courts that either the husband or wife committed adultery or if the marriage was not consummated.

With the case of adultery, a divorce was granted if the act was proven and the adulterer fled the location and alluded law enforcement. If the fugitive was caught he or she would be put to death. If the offender was not captured by the authorities the court would declare the scorned partner was free to remarry.

Another situation that the courts would pursue was denial of consummation of a marriage. It was recorded that any man who entered into a civil union with a wife of childbearing age refused or could not physically consummate the marriage then the union could be legally declared null and void due to fraud and deception.

We have traveled a long way since the 1700’s but these early laws still exist in variations on the books today. For instance, under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/301), the following laws can still be enacted to secure an annulment or official dissolution of a marriage.

The court shall render a judgment declaring the invalidity of a marriage if the marriage was entered under the following circumstances:

  • A party lacked the capacity to consent to the marriage due to mental incapacity or under the influence of alcohol, drugs or other demobilizing substances or if forced under duress or by fraudulent circumstances;
  • A party lacks the physical capacity to consummate the marriage and the other party was unaware of this physical incapacity; or
  • A party was not of legal age and did not have the legal consent of his or her parents or guardian.

With regard to adultery in Illinois, as a true no-fault divorce state since 2016, no longer is the act of adultery entered into record as automatic grounds for divorce. Adultery today is seen by the courts as “marital misconduct” committed by one spouse against the other.

So, it appears that the more things change the more they stay the same. With similarities of past and present divorce law, no matter the century the first step when considering a divorce is finding a skilled divorce attorney. For those residing in DuPage, Cook, Kane, Kendall or Will Counties, the experienced Hinsdale divorce attorneys of the Law Office of Martoccio & Martoccio extend a free consultation to discuss your situation. Contact us at 630-920-8855 to learn more about our services today.


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