Illinois Marriage and Dissolution of Marriage Act

Legislation

By: State of Illinois

Date: 2005

Source: State of Illinois. "Illinois Marriage and Dissolution of Marriage Act." April 16, 2006 〈http://www.ilga.gov/legislation/ilcs/〉 (accessed July 11, 2006).

About the Author: The Illinois General Assembly is the state's law-making body. It is made up of a House of Representatives with 118 members and a Senate with fifty-nine members.

INTRODUCTION

The traditional Christian wedding ceremony includes language describing marriage as among the oldest human institutions. Despite this long history, numerous states have recently passed legislation formally defining marriage, largely as a result of court decisions questioning the traditional definition of marriage. A 1991 case seeking marriage licenses for same-sex couples in Hawaii reached the state's Supreme Court, raising the possibility that Hawaii might begin recognizing same-sex marriages. Because all fifty states recognize marriages legally performed in other states this ruling raised the possibility that same-sex marriages might become legally recognized throughout the United States.

Many Americans believe that marriage should remain a heterosexual arrangement; a 2006 Gallup poll found that half of all Americans support a Constitutional Amendment defining marriage as a union between one man and one woman. Consequently, following the Hawaii filing state legislatures across the country began passing legislation clarifying the definition of marriage and declining to recognize out-of-state marriages which violated state statutes.

In 2000, the state of Illinois passed the Marriage and Dissolution of Marriage Act. This comprehensive legislation addressed a number of marriage-related issues, including legal complications related to the appointment of guardians for children of divorcing parents and what paperwork was required for a marriage. And like many other state laws of the era, the statute also defined marriage as a male-female union and stated that non-conforming marriages performed in other states would not be viewed as legally valid in Illinois.

PRIMARY SOURCE

PART II MARRIAGE

(750 ILCS 5/201) (from Ch. 40, par. 201)

Sec. 201. (Formalities.) A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this State.

(Source: P.A. 80-923.)

(750 ILCS 5/202) (from Ch. 40, par. 202)

Sec. 202. (Marriage License and Marriage Certificate.)

(a) The Director of Public Health shall prescribe the form for an application for a marriage license, which shall include the following information:

(1) name, sex, occupation, address, social security number, date and place of birth of each party to the proposed marriage;

(2) if either party was previously married, his name, and the date, place and court in which the marriage was dissolved or declared invalid or the date and place of death of the former spouse;

(3) name and address of the parents or guardian of each party; and

(4) whether the parties are related to each other and, if so, their relationship.

(b) The Director of Public Health shall prescribe the forms for the marriage license, the marriage certificate and, when necessary, the consent to marriage.

(Source: P.A. 80-923.)

(750 ILCS 5/203) (from Ch. 40, par. 203)

Sec. 203. License to Marry. When a marriage application has been completed and signed by both parties to a prospective marriage and both parties have appeared before the county clerk and the marriage license fee has been paid, the county clerk shall issue a license to marry and a marriage certificate form upon being furnished:

(1) satisfactory proof that each party to the marriage will have attained the age of 18 years at the time the marriage license is effective or will have attained the age of 16 years and has either the consent to the marriage of both parents or his guardian or judicial approval; provided, if one parent cannot be located in order to obtain such consent and diligent efforts have been made to locate that parent by the consenting parent, then the consent of one parent plus a signed affidavit by the consenting parent which (i) names the absent parent and states that he or she cannot be located, and (ii) states what diligent efforts have been made to locate the absent parent, shall have the effect of both parents' consent for purposes of this Section;

(2) satisfactory proof that the marriage is not prohibited; and

(3) an affidavit or record as prescribed in subparagraph (1) of Section 205 or a court order as prescribed in subparagraph (2) of Section 205, if applicable.

With each marriage license, the county clerk shall provide a pamphlet describing the causes and effects of fetal alcohol syndrome.

(Source: P.A. 86-832; 86-884; 86-1028.)

(750 ILCS 5/204) (from Ch. 40, par. 204)

Sec. 204. Medical information brochure. The county clerk shall distribute free of charge, to all persons applying for a marriage license, a brochure prepared by the Department of Public Health concerning sexually transmitted diseases and inherited metabolic diseases.

(Source: P.A. 86-884.)

(750 ILCS 5/205) (from Ch. 40, par. 205)

Sec. 205. Exceptions.

(1) Irrespective of the results of laboratory tests and clinical examination relative to sexually transmitted diseases, the clerks of the respective counties shall issue a marriage license to parties to a proposed marriage (a) when a woman is pregnant at the time of such application, or (b) when a woman has, prior to the time of application, given birth to a child born out of wedlock which is living at the time of such application and the man making such application makes affidavit that he is the father of such child born out of wedlock. The county clerk shall, in lieu of the health certificate required hereunder, accept, as the case may be, either an affidavit on a form prescribed by the State Department of Public Health, signed by a physician duly licensed in this State, stating that the woman is pregnant, or a copy of the birth record of the child born out of wedlock, if one is available in this State, or if such birth record is not available, an affidavit signed by the woman that she is the mother of such child.

(2) Any judge of the circuit court within the county in which the license is to be issued is authorized and empowered on joint application by both applicants for a marriage license to waive the requirements as to medical examination, laboratory tests, and certificates, except the requirements of paragraph (4) of subsection (a) of Section 212 of this Act which shall not be waived; and to authorize the county clerk to issue the license if all other requirements of law have been complied with and the judge is satisfied, by affidavit, or other proof, that the examination or tests are contrary to the tenets or practices of the religious creed of which the applicant is an adherent, and that the public health and welfare will not be injuriously affected thereby.

(Source: P.A. 94-229, eff. 1-1-06.)

(750 ILCS 5/206) (from Ch. 40, par. 206)

Sec. 206. Records. Any health certificate filed with the county clerk, or any certificate, affidavit, or record accepted in lieu thereof, shall be retained in the files of the office for one year after the license is issued and shall thereafter be destroyed by the county clerk.

(Source: P.A. 82-561.)

(750 ILCS 5/207) (from Ch. 40, par. 207)

Sec. 207. Effective Date of License. A license to marry becomes effective in the county where it was issued one day after the date of issuance, unless the court orders that the license is effective when issued, and expires 60 days after it becomes effective.

(Source: P.A. 81-397.)

(750 ILCS 5/208) (from Ch. 40, par. 208)

Sec. 208. Judicial Approval of Underage Marriages.

(a) The court, after a reasonable effort has been made to notify the parents or guardian of each underaged party, may order the county clerk to issue a marriage license and a marriage certificate form to a party aged 16 or 17 years who has no parent capable of consenting to his marriage or whose parent or guardian has not consented to his marriage.

(b) A marriage license and a marriage certificate form may be issued under this Section only if the court finds that the underaged party is capable of assuming the responsibilities of marriage and the marriage will serve his best interest. Pregnancy alone does not establish that the best interest of the party will be served.

(Source: P.A. 80-923.)

(750 ILCS 5/209) (from Ch. 40, par. 209)

Sec. 209. Solemnization and Registration.

(a) A marriage may be solemnized by a judge of a court of record, by a retired judge of a court of record, unless the retired judge was removed from office by the Judicial Inquiry Board, except that a retired judge shall not receive any compensation from the State, a county or any unit of local government in return for the solemnization of a marriage and there shall be no effect upon any pension benefits conferred by the Judges Retirement System of Illinois, by a judge of the Court of Claims, by a county clerk in counties having 2,000,000 or more inhabitants, by a public official whose powers include solemnization of marriages, or in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his religious denomination, Indian Nation or Tribe or Native Group. Either the person solemnizing the marriage, or, if no individual acting alone solemnized the marriage, both parties to the marriage, shall complete the marriage certificate form and forward it to the county clerk within 10 days after such marriage is solemnized.

(b) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed him to be so qualified.

(Source: P.A. 87-1261.)

(750 ILCS 5/210) (from Ch. 40, par. 210)

Sec. 210. Registration of Marriage Certificate. Upon receipt of the marriage certificate, the county clerk shall register the marriage. Within 45 days after the close of the month in which a marriage is registered, the county clerk shall make to the Department of Public Health a return of such marriage. Such return shall be made on a form furnished by the Department of Public Health and shall substantially consist of the following items:

(1) A copy of the marriage license application signed and attested to by the applicants, except that in any county in which the information provided in a marriage license application is entered into a computer, the county clerk may submit a computer copy of such information without the signatures and attestations of the applicants.

(2) The date and place of marriage.

(3) The marriage license number.

(Source: P.A. 85-1307.)

(750 ILCS 5/211) (from Ch. 40, par. 211)

Sec. 211. Reporting. In transmitting the required returns, the county clerk shall make a report to the Department of Public Health stating the total number of marriage licenses issued during the month for which returns are made, and the number of marriage certificates registered during the month.

(Source: P.A. 80-923.)

(750 ILCS 5/212) (from Ch. 40, par. 212)

Sec. 212. Prohibited Marriages.

(a) The following marriages are prohibited:

(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

(2) a marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;

(3) a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood;

(4) a marriage between cousins of the first degree; however, a marriage between first cousins is not prohibited if:

(i) both parties are 50 years of age or older; or

(ii) either party, at the time of application for a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile;

(5) a marriage between 2 individuals of the same sex.

(b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.

(c) Children born or adopted of a prohibited or common law marriage are the lawful children of the parties.

(Source: P.A. 94-229, eff. 1-1-06.)

(750 ILCS 5/213) (from Ch. 40, par. 213)

Sec. 213. Validity. All marriages contracted within this State, prior to the effective date of this Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State, except where contrary to the public policy of this State.

(Source: P.A. 80-923.)

(750 ILCS 5/213.1)

Sec. 213.1. Same-sex marriages; public policy. A marriage between 2 individuals of the same sex is contrary to the public policy of this State.

(Source: P.A. 89-459, eff. 5-24-96.)

(750 ILCS 5/214) (from Ch. 40, par. 214)

Sec. 214. Invalidity of Common Law Marriages. Common law marriages contracted in this State after June 30, 1905 are invalid.

(Source: P.A. 80-923.)

(750 ILCS 5/215) (from Ch. 40, par. 215)

Sec. 215. Penalty. Unless otherwise provided by law, any person who violates any provision of Part II of this Act is guilty of a Class B misdemeanor.

(Source: P.A. 80-923.)

(750 ILCS 5/216) (from Ch. 40, par. 216)

Sec. 216. Prohibited Marriages Void if Contracted in Another State. That if any person residing and intending to continue to reside in this state and who is disabled or prohibited from contracting marriage under the laws of this state, shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.

(Source: P.A. 80-923.)

(750 ILCS 5/217) (from Ch. 40, par. 217)

Sec. 217. Marriage by Non-residents—When Void. No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.

(Source: P.A. 80-923.)

(750 ILCS 5/218) (from Ch. 40, par. 218)

Sec. 218. Duty of Officer Issuing License. Before issuing a license to marry a person who resides and intends to continue to reside in another state, the officer having authority to issue the license shall satisfy himself by requiring affidavits or otherwise that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides.

(Source: P.A. 80-923.)

(750 ILCS 5/219) (from Ch. 40, par. 219)

Sec. 219. Offenses. Any official issuing a license with knowledge that the parties are thus prohibited from intermarrying and any person authorized to celebrate marriage who shall knowingly celebrate such a marriage shall be guilty of a petty offense.

(Source: P.A. 80-923.)

SIGNIFICANCE

The Illinois law is one of numerous federal and state statutes defining marriage in its traditional form. At the national level Congress passed the 1996 Defense of Marriage Act, which defined marriage for federal purposes as a male-female union. The act also granted the states the right to individually determine their own standards for marriage, and gave them the option not to recognize marriages performed in other states that did not meet their own state requirements.

States also passed numerous laws intended to define marriage in its traditional sense. In 2004 same-sex marriages were legalized in Massachusetts, making it the first state to allow such arrangements. State elections the following November approved constitutional amendments in eleven states defining marriage in its traditional form and providing greater protection against court ordered changes to existing state laws.

The debate over the form of marriage remains an emotionally charged conflict. Advocates of traditional marriage describe it as one of the pillars on which modern American society rests. They claim that recognizing other relationships and granting them the title of marriage will cheapen and dilute the existing institution of marriage. For many Americans, marriage also has religious implications and some find acceptance of non-traditional marriages immoral and offensive.

Advocates of non-traditional marriage argue that allowing them to enter into a different form of marriage actually has no impact on traditional marriages, because such marriages would continue to be recognized as they currently are. These proponents also argue that labeling their unions "domestic partnerships" or some other term implies second-class status in comparison to marriage, inherently degrading the new arrangement. Finally they argue that the traditional definition of marriage is outmoded and irrelevant in modern society, and that as a result many companies discriminate against non-traditional living arrangements by providing health and other benefits to spouses but not to unmarried partners.

While same-sex marriage advocates are the best-known and most vocal group fighting for legal recognition of non-traditional marriage, numerous smaller groups express similar aspirations. A small number of Americans practice polygamy, in which a person is simultaneously married to multiple spouses. The practice is a felony in all fifty states, but continues to exist, mostly in rural areas. Polygamists cite Biblical precedent for the practice and believe it should be legalized. Other groups advocate legal recognition for common law marriages and marriages between blood relatives, which are prohibited in many states.

As of 2006 forty-nine states and the federal government continue to define marriage as a union between one man and one woman. Numerous corporations extend health and other benefits to domestic partners. A 2006 effort to amend the U.S. Constitution to define marriage in the traditional sense failed to receive the needed votes in the U.S. Senate.

FURTHER RESOURCES

Books

Coontz, Stephanie. Marriage, a History: How Love Conquered Marriage. New York: Viking, 2005.

Lehman, Jennifer M. Gay & Lesbian Marriage and Family Reader: Analyses of Problems & Prospects for the 21st Century. New York: Richard Altschuler & Associates, 2001.

Richards, David. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: The University Press of Kansas, 2005.

Periodicals

Frieden, Joyce. "Group Sees Harm to Kids in Marriage Amendment." Pediatric News 39 (2005): 49.

Pinsof, William. "Marriage in the Twentieth Century in Western Civilization: Trends, Research, Therapy, and Perspectives." Family Process 41 (2002): 1.

Web sites

CNN. "GOP Renews Fight Against Gay Marriage." June 6, 2006 〈http://www.cnn.com/2006/POLITICS/06/05/same.sex.marriage/index.html〉 (accessed July 10, 2006).

DuPage County Bar Association. "Significant Amendment of the Illinois Marriage and Dissolution of Marriage Act Should Alleviate Role Confusion." 2000 〈http://www.dcba.org/brief/mayissue/2000/art20500.htm〉 (accessed July 11, 2006).

Stateline. "50-state rundown on gay marriage laws." November 3, 2004 〈http://www.stateline.org/live/〉 (accessed June 15, 2006).