PR 05405.016 Illinois
A. PR 91-011 Validity of Marriage Under Illinois Law, Henry R~, Deceased, SSN~
DATE: June 7, 1991
ILLINOIS — A marriage ceremony conducted by a clergyman licensed to perform marriages in Illinois is not invalidated in Illinois because it was performed with an out of state license or no license. A spouse of an invalid marriage has the status of putative spouse and is treated like a legal spouse under Illinois law as long as the individual maintains a good faith belief in the validity of the marriage. (R~, Henry, ~ RAY [W~] to ARC, PCO, 07/09/91)
You have asked whether Anne R~ ("Anne") is the widow of the deceased wage earner Henry R~. Anne and Henry celebrated a ceremonial marriage in Illinois in 1952, and they lived together in Illinois as husband and wife until 1968. Thereafter, Henry remarried, but he never secured a divorce from Anne. However, on the date that Henry and Anne celebrated their marriage, Anne was still married to Eddie W~. Although she secured a divorce from Eddie, the divorce was not effective until six days after her purported marriage to Henry. For the following reasons, we conclude that Anne and Henry never had a valid marriage. We also address the issue whether Anne qualifies as a putative spouse and conclude that you may find that any good faith belief that she was validly married to Henry ceased at some time prior to his death.
On April 10, 1952, "Miss Anne D~" was married to Henry D. R~ by a clergyman. Although the marriage license was issued by the State of Mississippi on April 5, 1952, Anne says that the ceremony took place in Chicago. She claims that Henry secured the license while visiting his parents and that she was not present. The marriage was registered in Mississippi.
On April 7, 1952, an attorney acting on Anne's behalf appeared in Cook County Superior Court pursuant to a petition for divorce filed by "Annie B. W~," nee D~ , against Eddie J. W~. The decree of divorce was entered on April 16, 1952, six days after Anne went through the marriage ceremony with Henry.1_/ A certified copy of the decree was issued on May 13, 1953. Anne claims that "the judge that handled [her] divorce from Eddie W~ " told her that her marriage to Henry was valid and that there was no need to remarry. She later said that she had not spoken to the judge, but that the lawyer who handled the divorce from Eddie told her that even if the divorce did not go through by April 10 her marriage to Henry would be legal. In the second statement, Anne also denied being aware of the date of the divorce until she "unfolded" the papers at the Social Security office when she applied for widow's benefits.
Anne and Henry lived together as husband and wife until they separated in 1968. Henry's military discharge papers, issued in 1953, describe him as "married." Search of the Cook County court records does not disclose any record of a divorce between Anne and Henry, and Anne denies that she and Henry ever were divorced.
Henry died in Chicago on October 16, 1989. The death certificate lists Zuella P~ as his surviving spouse. Zuella is receiving widow's benefits on Henry's account. According to her application, she underwent a ceremonial marriage to Henry in Chicago on February 5, 1972. The file does not contain any documentation of Zuella's marriage to Henry.
1. Was Anne and Henry's ceremonial marriage in Chicago valid even though the marriage license was issued by the State of Mississippi?
2. Even though when Anne and Henry's marriage was celebrated Anne had a living husband from whom she was not divorced, did Anne's marriage to Henry become valid after her prior marriage was terminated by divorce?
3. Is Anne Henry's widow by virtue of having been a putative spouse?
By itself, the fact that Anne and Henry's marriage license was issued by the State of Mississippi would not affect the validity of their ceremonial marriage in Chicago. In 1953, the Illinois Supreme Court held that the parties' failure to obtain a marriage license would not invalidate a marriage that was blessed by a clergyman authorized to perform marriages in Illinois. Haderaski v. Haderaski, 112 N.E.2d 714 (Ill. 1953). In Haderaski the parties underwent two marriage ceremonies. When the first was performed, the "[wife] had a husband living from whom she was not divorced." Id. at 715. Sometime after a divorce was obtained, the parties were married again, by a priest, but without a marriage license. Id. It follows that if a marriage ceremony performed by a clergyman with no license is valid in Illinois then a marriage ceremony performed with an out-of-state license also would be valid.
This conclusion is of little comfort to Anne, however, because she was married to Eddie at the time her purported marriage to Henry was celebrated. The Haderaski case strongly suggests that in the absence of a celebration of their marriage subsequent to the date of Anne's divorce from Eddie, Anne and Henry never had a valid marriage. See id.
As part of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Stat. Ch. 40, 101, et seq. ("1977 Act"), Illinois legislated two possible ways out of the foregoing dilemma for Anne. First, although Illinois continued not to recognize common law marriages entered into after June 30, 1905, the new law provided that:
Parties to a marriage prohibited under subsection (a) of this Section [, including "a marriage entered into prior to the dissolution of an earlier marriage of one of the parties,"] who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.
Ill. Rev. Stat. Ch. 40, ~ 212(b) (quoting, in brackets, ~ 212(a)(1)); see Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979) (discussing effect of 1977 Act on Illinois law in general and cohabitation without ceremonial marriage in particular). Unfortunately for Anne, however, this provision did not take effect until October 1, 1977.
In an earlier opinion, B~ , Morris ~, RA V (Dorn), to Director, Insurance Programs Branch (July 19, 1982) (copy attached), we specifically addressed the question of whether ~ 212(b), above, applied if the parties to the invalid marriage did not cohabit on or after October 1, 1977. In reliance on, among other things, the Commentary following I 212 (quoted in Memorandum at p. 4), we reasoned:
In the absence of Illinois case law to the contrary, we conclude that paragraph 212(b) does not validate marriages contracted prior to October 1, 1977, where the impediment to the marriage was removed prior to that date and the parties no longer cohabited after that date.
Memorandum of July 19, 1982, at 4. Since our updated research continues to disclose no Illinois case law to the contrary, we reaffirm the foregoing conclusion.
Nevertheless, Anne has a chance of qualifying as Henry's putative spouse under another section of the 1977 Act, Ill. Rev. Stat. ~ 305. In footnote 3 of our Memorandum of July 19, 1982, we cite other opinions in which we applied ~ 305 to cases in which the wage earner and the claimant separated prior to October 1, 1977. We explained that,
unlike paragraph 212, paragraph 305 does not validate a prohibited marriage, but only confers a status of putative spouse upon an individual so long as the individual maintains a good faith belief in the validity of the marriage.
Memorandum of July 19, 1982, at 6 n.3. Since a putative spouse's right to be treated like a legal spouse terminates as soon as he or she learns that the marriage is not valid, you must decide whether Anne maintained, until Henry's death, a good faith belief that she was his legal wife. See Ill. Rev. Stat. Ch. 40, ~ 305 (a putative spouse remains a putative spouse only "until knowledge of the fact that he is not legally married terminates his status").
The notes in the file suggest that you harbor serious doubt as to Anne's professed good faith belief that she is Henry's widow, and we concur. On March 5, 1991, Anne signed a statement in which she claimed that her attorney advised her that her marriage to Henry would be legal regardless of whether the divorce from Eddie came through in time. The statement is questionable on its face since any attorney practicing matrimonial law may be presumed to have known that in 1952 having a living husband from whom she was not divorced was an insuperable impediment to a woman's valid remarriage. The statement is surrounded by additional indicia of untruthfulness.
Anne's original story, presented in a statement signed on December 18, 1990, was that she asked the Judge whether she needed to remarry Henry after her divorce from Eddie became final and that the judge said that she did not. This story, too, is incredible on its face since it would require a divorce court judge, whom Anne claimed in another statement never to have appeared before, 2_/ to give incorrect legal advice to a party represented by counsel.
Even allowing for the possibility that when Anne said "judge" she meant "lawyer," her stories are inconsistent. In her March 1991 statement Anne categorically disavows any knowledge whatsoever during Henry's lifetime that the divorce from Eddie postdated the marriage to Henry. She claims not to have discovered the effective date of the divorce until she applied for Social Security benefits, explaining that the "divorce papers remained folded" (for more than 35 years). But, unless Anne knew that her divorce from Eddie postdated her marriage to Henry she would have had no reason to ask the judge, her lawyer, or anyone else whether she had to remarry Henry after her divorce from Eddie became final. It simply would not have been an issue. Moreover, on January 4, 1991, when asked (if she claimed that she was not aware when she married Henry that her marriage to Eddie was undissolved) to "explain when, and under what circumstances, [she] became aware of this fact," Anne responded: "THE PAPERS WERE MAILED TO ME SOMETIME LATER." The undeniable implication of this statement is that upon receipt of the divorce papers Anne realized that when she underwent the marriage ceremony with Henry she was still married to Eddie.
Finally, Anne's claim to have remained on good terms with Henry but not to have known about his marriage to Zuella also lacks credibility.3_/ If you believe that before his death Anne knew of Henry's marriage to Zuella, then that knowledge may be viewed as cutting off her status as Henry's putative spouse, if any such status ever developed.
Anne and Henry's marriage was not valid when celebrated because at the time she had a living husband from whom she was not divorced. Although six days later Anne's prior marriage was dissolved, her marriage to Henry did not thereby become valid because Anne and Henry did not live together as husband and wife at any time after October 1, 1977. The only evidence that would support a finding that Anne was Henry's putative spouse because of a good faith belief that their marriage was valid comes from Anne's own statements, but these are inherently unreliable and inconsistent.
1_/ The divorce decree references a minor child of Anne and Eddie and awards Anne custody.
2_/ On January 4, 1991, Anne submitted written answers to questions that you propounded to develop the file.
3_/ We are assuming that you have adequate proof of Henry and Zuella's marriage. The file that we have does not contain any documentation of that relationship.
B. PR 81-009 Putative Marriage - Illinois, George C~,D/W/,~ Essie H. C~ ,Claimant
Ceremonial Marriage—Validity - Illinois
A marriage ceremony performed contrary to a provision that a marriage license does not become effective until 3 days after the date of issuance is not invalidated when the ceremony takes place prior to the expiration of the waiting period. Failure to comply with technical requirements does not invalidate a marriage unless a statute provides explicitly that such failure would render it null and void.
This is in reference to your request for our assistance in determining the legal status of a marriage between the wage earner and the claimant. We conclude,, for the reasons set forth below, that the marriage was fully valid from its inception and that no determination as to the existence of a putative marriage is necessary.
This relevant facts may be briefly summarized: The claimant and the wage earner obtained a marriage license in Winnebago County, Illinois on May 23, 1979. The marriage ceremony, performed by a minister, took place the same day. At the time of the marriage, however, Illinois law provided that a marriage license did not become effective until three days after the date of issuance. ILL. REV. STAT. Ch. 40, par. 207 (S~-H~). 1/ On June 6, 1978 the Winnebago County Clerk notified the claimant, wage earner, and the minister that the marriage had taken place in contravention of the required waiting period and further advised the parties "to seek Legal Council (sic) as to the validity of the marriage." The file indicates that shortly thereafter the county clerk received a phone call from the claimant and wage earner, who indicated that they did not wish to obtain a second license. The wage earner and the claimant separated in August, 1978, two months after their marriage. The parties remained separated until the wage earner's death. On October 6, 1980 Essie C~ filed a claim for disabled widow's benefits on the account of the wage earner. In her statement, she asserted that she had been aware of the required waiting period, but believed she had been validly married to the wage earner. The claim was initially denied on the grounds that the claimant had not established a disabling medical condition. The claimant then filed a request for reconsideration, necessitating a determination of marital status in the event that disability is established.
You have asked us whether a putative marriage existed between the claimant and the wage earner pursuant to Section 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977. ILL. REV. STAT. Ch. 40, per. 305 (S~-H~). We need not consider this question, however, because under the facts of this case, there was no legal impediment to the validity of the marriage.
In Haderaski V. Haderaski, 112 N.E. 2d 714 (Ill. 1953), which involved a marriage solemnized without a license, the Illinois Supreme Court held that "unless the statute expressly declares a marriage contracted without the necessary parental consent, or compliance with other requirements to be a nullity, such statutes will be construed to be directory only in this respect, so that the marriage will be held valid, although an infraction of the statute may entail penalties." 112 N.E. 2d at 715. The statute in effect at the of Haderaski required a license to be secured prior to a marriage; it contained no provision, however, that a marriage performed without such license was null and void. Accordingly, the Court upheld the validity of the marriage before it.
The rule set forth in Haderaski has continued under the present Marriage and Dissolution of Marriage Act. While Section 201 of the Act (which was adapted from the Uniform Marriage and Divorce Act) provides that "a marriage . . . licensed, solemnized and registered as provided in this Act is valid in this State," the legislative comments make clear that a marriage performed other than in strict accordance with the Act is not necessarily invalid:
This section (Section 201)"does not necessarily invalidate marriages performed in the state which are not 'licensed, solemnized and registered'
in accordance with this Act." Uniform Marriage and Divorce Act (9A U.L.A.) $201, Commissioners' Comment at 100. Under the prior law, the parties failure to obtain an examination for venereal disease did not invalidate a marriage. Boysen V. Boysen, 23 N.E. 2d 231 (Ill. App. 1939). Also, the lack of a license did not invalidate a marriage which was solemnized by an ordained priest. Haderaski V. Haderaski, 112 N.E. 2d 714 (Ill. 1953). Section 201 is not intended to alter such case law . . . Nor may such formal errors be raised as grounds for declaration of invalidity of marriage under section 301 of this Act. Commissioners' Comment at 100, supra. According to the Commissioners: "The general course of decision holds that not every deviation from formal prescribed procedures renders a marriage subject to successful attack. Substantial compliance, in the light of attendant circumstances and statutory policy, results in a sustainable marriage." Commissioners' Comment at 100 supra. ILL. REV. STAT. Ch. 40 following par. 201 (S~-H~).
The rule in Illinois continues to be, therefore, that a marriage performed in contravention of one or more of the formal requirements for marriage remains valid unless the statute expressly prohibits such a marriage. If a marriage performed without a license is valid in Illinois, it follows that a marriage performed with a license, although prior to the expiration of a prescribed waiting period, is also valid. IN the present case, Section 207 of the Marriage and Dissolution of Marriage Act provides for a waiting period following the issuance of a license; it contains no provision, however, that a marriage performed prior to the expiration of the waiting period is prohibited. No other section of the Act prohibits such a marriage. Only bigamous and incestuous marriages are expressly prohibited under Section 212, and only these marriages, in addition to marriages where a party is underage, lacks the capacity to either consent to or consummate the marriage, or is induced to enter by fraud or duress may be annulled under Section 301. ILL. REV. STAT. Ch. 40, per. 212, 301 (S~-H~). We conclude, therefore, that a marriage performed prior to the expiration of the required waiting period following the issuance of a license is valid, regardless of the good faith or lack of good faith of the parties.