In re Marriage of May
Annotate this Case
No. 3--96--0588
_________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
IN RE THE MARRIAGE OF: ) Appeal from the Circuit Court
) for the 14th Judicial Circuit,
TAMERA SUE MAY, ) Rock Island County, Illinois
)
Petitioner-Appellee, )
)
v. ) No. 94 D 909
)
TOMMY JOE MAY ) Honorable
) Alan G. Blackwood
Respondent-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________
In this case, we are confronted with the intriguing issues of
bigamy and deceit. But the fundamental question we must answer is
whether a second husband may have his marriage declared void after
his wife's prior marriage has been dissolved, despite the fact that
he lived in a conjugal relationship with his wife for almost four
years thereafter. We hold that he cannot.
FACTS
Tamera and Tommy were married in Illinois in 1989. They had
three children, Randy, born in 1989, Michael, born in 1991, and
Megan, born in 1992. At the time the parties were married, Tamera
was still married to her first husband, and she remained married to
him until a dissolution judgment was entered in Texas in 1991.
Tamera testified that she married her first husband solely to
enable him to obtain an immigration visa.
At the time Tamera and Tommy were married, Tommy was aware
that Tamera's divorce had not yet been presented to the Texas
court. However, Tamera told Tommy that the divorce would be
entered by the court within a week of their marriage. Tommy and
Tamera continued to cohabit as husband and wife until shortly
before Tamera filed her petition for dissolution of marriage in
December 1994. During a deposition in the instant divorce
proceedings, Tommy discovered that Tamera's divorce from her first
husband had been delayed.
After the trial court entered the judgment of dissolution,
Tommy filed a motion to reconsider which asked the court to clarify
the duration of the marriage in light of Tamera's prior marriage.
The trial court ruled that the parties' marriage was void in 1989,
but became valid on the date Tamera's marriage to her first husband
was dissolved. In making this ruling, the trial court relied on
section 212 of the Illinois Marriage and Dissolution of Marriage
Act (Act), which provides that parties to a prohibited marriage who
cohabit after removal of the impediment are lawfully married as of
the date of the removal of the impediment. 750 ILCS 5/212(b) (West
1994). Thereafter, Tommy filed another motion to declare the
marriage void ab initio and set aside all orders related to the
marriage. The trial court denied this motion because it had
previously entered a ruling on the validity of the parties'
marriage. This appeal followed.
DISCUSSION
The sole issue on appeal is whether the cohabitation required
by section 212(b) of the Act must occur with knowledge that the
prior impediment to the marriage has been removed.
The overriding objective in interpreting a statute is to
ascertain and give effect to the intent of the legislature. Roser
v. Anderson, 222 Ill. App. 3d 1071, 584 N.E.2d 865 (1991). If
statutory language is susceptible to more than one interpretation,
the court may look beyond the language to consider the purposes to
be served by the statute. Sisters of Third Order of St. Francis v.
People ex rel. Barra, 151 Ill. App. 3d 875, 503 N.E.2d 1069 (1987).
If, however, the language is clear, the court must confine its
inquiry to a consideration of that language and must not look to
extrinsic aids. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167 (1984). This court reviews questions of statutory
construction de novo. See Wright v. Chicago Municipal Employees
Credit Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203 (1994).
Section 212 of the Act prohibits marriage prior to the
dissolution of an earlier marriage of one of the parties. 750 ILCS
5/212(a)(1) (West 1994). This section further provides that
"[p]arties 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." 750 ILCS
5/212(b) (West 1994).
Although Tommy does not deny that he and Tamera lived together
as husband and wife after Tamera's 1991 divorce from her first
husband, he claims that such cohabitation is not enough to validate
the marriage under section 212(b) of the Act. He argues that since
a bigamous marriage is void ab initio (see Cartwright v. McGown,
121 Ill. 388, 12 N.E. 737 (1887)), section 212(b) can only operate
to create a lawful marriage if all of the requisite elements of a
valid marriage exist. Because consent is a requisite element of
marriage (Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E.2d 594
(1963)), Tommy claims that section 212(b) operates to validate a
prohibited marriage only if the parties cohabit after the
impediment is removed and both parties have knowledge that the
impediment has been removed. This position is untenable.
Since the term cohabit is not ambiguous, we must apply the
statute as written without the addition of requirements which are
not found in the express language of the statute. Accordingly, we
cannot read a scienter requirement into section 212(b) of the Act.
In addition, a critical reading of section 212(b) discloses
that Tommy's proposed interpretation of the statute is improper.
Since common law marriages are not recognized in Illinois,
cohabitation alone can never result in a valid marriage. Because
section 212(b) operates to create a valid marriage based solely
upon cohabitation after the removal of an impediment, we must
assume that the legislature intended to ascribe some meaning to the
wedding ceremony that created the bigamous marriage. Moreover,
although a bigamous marriage is void ab initio, it does not follow
that such a marriage lacked all of the necessary elements of a
marriage or that the parties' manifestations of consent at the
wedding ceremony must be ignored for all purposes. It thus appears
that section 212(b) presupposes that the bigamous marriage is valid
in every regard except for the fact that it took place prior to the
dissolution of an earlier marriage of one of the parties.
Accordingly, a consent requirement need not be read into section
212(b) because a bigamous marriage does not necessarily lack the
element of consent.
The foregoing analysis does not foreclose the possibility that
a bigamous marriage lacked the required consent of the parties at
the time they entered into the marriage. In such a case, section
212(b) would not operate to ratify the marriage. However, lack of
consent and bigamy are separate defects. For these reasons, we
hold that section 212(b) of the Act operates to ratify a bigamous
marriage regardless of whether the parties have knowledge that the
impediment has been removed.
Tommy also claims that the trial court's interpretation of
section 212(b) does not comport with sections 301 and 305 of the
Act. According to section 301, a court shall enter a judgment
declaring the invalidity of any marriage which is prohibited. 750
ILCS 5/301(4) (West 1994). Section 305 provides that a person who
has gone through a marriage ceremony and cohabited with another to
whom he is not legally married in the good faith belief that he was
married to that person is a putative spouse until he acquires
knowledge that he is not legally married. 750 ILCS 5/305 (West
1994). Neither of these provisions is inconsistent with our
interpretation of section 212(b).
While bigamy is clearly grounds for annulment, once a bigamous
marriage is legalized by operation of section 212(b), it can no
longer be considered a "prohibited marriage." Similarly, section
305 of the Act confers putative spouse status only on those who are
not legally married. Thus, Tommy lost his status as Tamera's
putative spouse when his marriage was ratified by operation of
section 212(b). Accordingly, we reject this argument.
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
HOMER and McCUSKEY, JJ., concur.
_________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
IN RE THE MARRIAGE OF: ) Appeal from the Circuit Court
) for the 14th Judicial Circuit,
TAMERA SUE MAY, ) Rock Island County, Illinois
)
Petitioner-Appellee, )
)
v. ) No. 94 D 909
)
TOMMY JOE MAY ) Honorable
) Alan G. Blackwood
Respondent-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________
In this case, we are confronted with the intriguing issues of
bigamy and deceit. But the fundamental question we must answer is
whether a second husband may have his marriage declared void after
his wife's prior marriage has been dissolved, despite the fact that
he lived in a conjugal relationship with his wife for almost four
years thereafter. We hold that he cannot.
FACTS
Tamera and Tommy were married in Illinois in 1989. They had
three children, Randy, born in 1989, Michael, born in 1991, and
Megan, born in 1992. At the time the parties were married, Tamera
was still married to her first husband, and she remained married to
him until a dissolution judgment was entered in Texas in 1991.
Tamera testified that she married her first husband solely to
enable him to obtain an immigration visa.
At the time Tamera and Tommy were married, Tommy was aware
that Tamera's divorce had not yet been presented to the Texas
court. However, Tamera told Tommy that the divorce would be
entered by the court within a week of their marriage. Tommy and
Tamera continued to cohabit as husband and wife until shortly
before Tamera filed her petition for dissolution of marriage in
December 1994. During a deposition in the instant divorce
proceedings, Tommy discovered that Tamera's divorce from her first
husband had been delayed.
After the trial court entered the judgment of dissolution,
Tommy filed a motion to reconsider which asked the court to clarify
the duration of the marriage in light of Tamera's prior marriage.
The trial court ruled that the parties' marriage was void in 1989,
but became valid on the date Tamera's marriage to her first husband
was dissolved. In making this ruling, the trial court relied on
section 212 of the Illinois Marriage and Dissolution of Marriage
Act (Act), which provides that parties to a prohibited marriage who
cohabit after removal of the impediment are lawfully married as of
the date of the removal of the impediment. 750 ILCS 5/212(b) (West
1994). Thereafter, Tommy filed another motion to declare the
marriage void ab initio and set aside all orders related to the
marriage. The trial court denied this motion because it had
previously entered a ruling on the validity of the parties'
marriage. This appeal followed.
DISCUSSION
The sole issue on appeal is whether the cohabitation required
by section 212(b) of the Act must occur with knowledge that the
prior impediment to the marriage has been removed.
The overriding objective in interpreting a statute is to
ascertain and give effect to the intent of the legislature. Roser
v. Anderson, 222 Ill. App. 3d 1071, 584 N.E.2d 865 (1991). If
statutory language is susceptible to more than one interpretation,
the court may look beyond the language to consider the purposes to
be served by the statute. Sisters of Third Order of St. Francis v.
People ex rel. Barra, 151 Ill. App. 3d 875, 503 N.E.2d 1069 (1987).
If, however, the language is clear, the court must confine its
inquiry to a consideration of that language and must not look to
extrinsic aids. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167 (1984). This court reviews questions of statutory
construction de novo. See Wright v. Chicago Municipal Employees
Credit Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203 (1994).
Section 212 of the Act prohibits marriage prior to the
dissolution of an earlier marriage of one of the parties. 750 ILCS
5/212(a)(1) (West 1994). This section further provides that
"[p]arties 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." 750 ILCS
5/212(b) (West 1994).
Although Tommy does not deny that he and Tamera lived together
as husband and wife after Tamera's 1991 divorce from her first
husband, he claims that such cohabitation is not enough to validate
the marriage under section 212(b) of the Act. He argues that since
a bigamous marriage is void ab initio (see Cartwright v. McGown,
121 Ill. 388, 12 N.E. 737 (1887)), section 212(b) can only operate
to create a lawful marriage if all of the requisite elements of a
valid marriage exist. Because consent is a requisite element of
marriage (Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E.2d 594
(1963)), Tommy claims that section 212(b) operates to validate a
prohibited marriage only if the parties cohabit after the
impediment is removed and both parties have knowledge that the
impediment has been removed. This position is untenable.
Since the term cohabit is not ambiguous, we must apply the
statute as written without the addition of requirements which are
not found in the express language of the statute. Accordingly, we
cannot read a scienter requirement into section 212(b) of the Act.
In addition, a critical reading of section 212(b) discloses
that Tommy's proposed interpretation of the statute is improper.
Since common law marriages are not recognized in Illinois,
cohabitation alone can never result in a valid marriage. Because
section 212(b) operates to create a valid marriage based solely
upon cohabitation after the removal of an impediment, we must
assume that the legislature intended to ascribe some meaning to the
wedding ceremony that created the bigamous marriage. Moreover,
although a bigamous marriage is void ab initio, it does not follow
that such a marriage lacked all of the necessary elements of a
marriage or that the parties' manifestations of consent at the
wedding ceremony must be ignored for all purposes. It thus appears
that section 212(b) presupposes that the bigamous marriage is valid
in every regard except for the fact that it took place prior to the
dissolution of an earlier marriage of one of the parties.
Accordingly, a consent requirement need not be read into section
212(b) because a bigamous marriage does not necessarily lack the
element of consent.
The foregoing analysis does not foreclose the possibility that
a bigamous marriage lacked the required consent of the parties at
the time they entered into the marriage. In such a case, section
212(b) would not operate to ratify the marriage. However, lack of
consent and bigamy are separate defects. For these reasons, we
hold that section 212(b) of the Act operates to ratify a bigamous
marriage regardless of whether the parties have knowledge that the
impediment has been removed.
Tommy also claims that the trial court's interpretation of
section 212(b) does not comport with sections 301 and 305 of the
Act. According to section 301, a court shall enter a judgment
declaring the invalidity of any marriage which is prohibited. 750
ILCS 5/301(4) (West 1994). Section 305 provides that a person who
has gone through a marriage ceremony and cohabited with another to
whom he is not legally married in the good faith belief that he was
married to that person is a putative spouse until he acquires
knowledge that he is not legally married. 750 ILCS 5/305 (West
1994). Neither of these provisions is inconsistent with our
interpretation of section 212(b).
While bigamy is clearly grounds for annulment, once a bigamous
marriage is legalized by operation of section 212(b), it can no
longer be considered a "prohibited marriage." Similarly, section
305 of the Act confers putative spouse status only on those who are
not legally married. Thus, Tommy lost his status as Tamera's
putative spouse when his marriage was ratified by operation of
section 212(b). Accordingly, we reject this argument.
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
HOMER and McCUSKEY, JJ., concur.
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