‘Essence of marriage’ is important but hard to define

| Apr 8, 2016 | Family Law |

You don’t hear much about annulment of marriages around Illinois. As we noted in our previous post it is a part of the family law landscape. But state law is fairly restrictive about when it can be sought and when courts can grant that a marriage never really existed in the eyes of the law.

As that post noted, a claim of fraud is one of the grounds upon which an annulment might be sought in Illinois. Very often the argument made is that the alleged fraud somehow violated one of the so-called “essentials of the marriage.” What does that mean? The answer in the context of family law issues can be hard to pin down.

In the view of at least one legal scholar, the definition of the essence of marriage as it might apply to requests for annulment is changing. Traditionally, the essentials were seen as boiling down to sex and procreation. That’s not so much the case now.

Today, some judges seem more inclined to accept fraud claims, especially in cases where the union in question appears to have been entered into too hastily. But in addition to that, legal educator Joanna L. Grossman argues that there is a move toward a more subjective interpretation of marriage essentials that allows a looser reading of how fraud can be interpreted.

That is, rather than limiting decisions on the basis of whether traditional essentials of marriage have been fulfilled or not, some courts are willing to ask whether the marriage would have ever taken place if the petitioner had known about a fraud in the first place. If the answer is no, an annulment might be granted.

The rationale seems to stem from a view that treats marriage more like other contracts in which the terms of the arrangement are established by the individuals, rather than by some status defined and overseen by the state.

The law can and does change over time. What may have applied in one era may not today. That can make it a challenge to understand and protect your rights without the help of experienced counsel.

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