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Removing Impediment to Marriage

The Law Offices of Van A. Schwab Feb. 15, 2022

Under Section 212 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/212), parties who are prohibited from marrying one another, may marry once the impediment to a lawful marriage is removed. This means that if a married person marries someone else, the second marriage is automatically valid once the first marriage is dissolved, so long as the parties to the second marriage cohabitate.

What Are the Impediments to A Lawful Marriage in Illinois?

The Illinois Marriage and Dissolution of Marriage Act establishes four impediments, or limits, on marriage. These impediments include, 1) a marriage entered into before a prior marriage is dissolved, 2) a marriage between ancestors, decedents, and siblings, 3) a marriage between an aunt or uncle with a niece or nephew, or 4) a marriage between first cousins. 750 ILCS 5/212 (a).

First, the Act prohibits marriage entered into before the dissolution of a prior marriage, civil union, or legal relationship. There is one exception to this limit on marriage, if the parties are the same as the first marriage or are seeking to convert their civil union to a marriage, they may do so. Second, ancestors and decedents as well as siblings, either half, full blood or through adoption, cannot marry one another. Third, the Act prohibits aunts and uncles from marrying their nieces or nephews, whether the relationship is by half or whole blood. Fourth, first cousins generally cannot marry one another but there are two exceptions. First cousins may marry one another if both parties are over 50 years old. Additionally, if a party to the marriage between first cousins is sterile and the parties present a certificate signed by a licensed physician stating that the party is permanently and irreversibly sterile, the first cousins may still marry. 750 ILCS 5/212 (a).

Removing the Impediment

According to Section 212 of the Illinois Marriage and Dissolution of Marriage Act, parties who fall under one of the impediments listed above are legally married if the parties cohabitate, or live together, after the impediment is removed. Under the Act, if a party is married to one person, but chooses to marry another person while still married, an impediment exists because the first marriage was not dissolved. However, if an individual marries a second person while still married to the first, the second marriage is legal as of the date that the first marriage is dissolved, as long as the parties to the second marriage cohabitate. 750 ILCS 5/212 (b).

So, where a party wishes to validate a second marriage, that party must first remove the impediment by dissolving the prior marriage and live with the spouse of the second marriage. See 750 ILCS 5/212 (b).