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The Differences Between Divorce and Annulment

Posted on in Divorce

Naperville Divorce Lawyer annulment In some circumstances, the annulment of a marriage can be sought instead of a divorce. The difference between a divorce and an annulment is that a divorce ends the marriage, but an annulment declares that the marriage was invalid and should never have happened. Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/301), the court has the power to determine and make it as though the marriage never occurred. However, an annulment will only be available in particular situations:

Lack of Capacity to Consent

If one or both of the individuals who were married lacked the mental capacity to consent to marriage, it can be annulled. This includes if the individuals were drunk, on drugs, or intoxicated by any other substance that mentally impaired them at the time of their wedding (think of a late-night Las Vegas ceremony). The parties can reasonably claim afterward that they did not have the capability to consent to the union. In such a case, the annulment must be sought within 90 days to void the marriage.

Coerced into Marriage

If one participant in the wedding entered into the union while under duress, the marriage may be annulled. In these cases, there is also has a 90-day time limit after learning of the conditions for annulment.


This is often the most difficult circumstance for which to seek an annulment. In these cases, fraud refers to something which violates the essentials of marriage. Annulments based on fraud are generally not granted in instances such as lying about social standing, character, or wealth (such as claiming to be a millionaire) because the marriage is "for richer, for poorer." Fraud will typically not apply in cases involving dishonesty concerning previous relationships or marriages or children which may or may not have come from such unions, or using a false pregnancy as a pretext for the marriage, or lying about the death of an ex-spouse. These may be considered reasons for divorce, but they are usually not grounds for annulment.

Fraud-based annulments tend to be determined on a case-by-case basis and are often the most difficult to prove. A spouse has a 90-day window after learning of the fraud to seek an annulment. 

The Inability to Consummate the Marriage

This applies when an individual enters into a marriage without prior knowledge that their partner cannot consummate the marriage. An annulment can be sought within one year after a spouse receives knowledge of this fact. 

A Marriage that Involves a Minor

If a marriage involving a minor aged 16 or 17 occurs without the permission of the parent, guardian, or the court, then it can be annulled. An annulment can be sought any time prior to the age of 18 by either the minor or their guardian. 

If Marriage Is Prohibited 

A prohibited marriage is typically a reference to incestuous, bigamous, or polygamous marriage. An annulment can be sought by either party or a child of either party at any time up to three years after the death of one of the spouses.

Can a Same-Sex Couple get an Annulment?

Yes. An amendment to the statute grants same-sex couples the same rights to annul their marriage as heterosexual couples.

Contact a DuPage County Divorce Attorney

If you want to annul your marriage or get a divorce, contact the Naperville divorce lawyers at Anderson & Anderson, P.C. to learn about your legal options. Call our offices at 630-653-9400 for a free consultation.



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