Discussions about divorce often focus on financial disputes, children, and property division. But what about intimacy – or the lack thereof? A recent case in France [1] made headlines when a man successfully argued that his wife’s refusal to engage in sexual relations was grounds for divorce and damages. While this may seem foreign to those familiar with Illinois law, the issue of sexual intimacy in marriage is not entirely irrelevant here.

Illinois has strictly no-fault divorce laws, meaning that a lack of sex – whether due to desire, incompatibility, or refusal – is not a basis for divorce in and of itself. However, there is a narrow legal avenue where the inability to consummate a marriage can impact its validity: annulment, legally referred to as a “declaration of invalidity of marriage.”

No-Fault Divorce in Illinois: Why Marital Conduct Doesn’t Matter

Illinois abolished fault-based divorce in 2016. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the only contemporary ground for divorce is “irreconcilable differences”, which means that a couple’s relationship has deteriorated beyond repair. This change eliminated the need for spouses to prove misconduct – whether infidelity, abuse, or refusal to engage in sexual relations – to dissolve a marriage.
In practical terms, this means that if one spouse refuses to have sex, the other cannot cite this as a reason for the divorce or expect to receive a more favorable outcome in court. The division of assets, spousal support, and parental responsibilities are decided based on statutory factors, not on who was at fault for the breakdown of the marriage.

This differs from earlier laws that recognized grounds such as impotence, adultery, desertion, or habitual drunkenness. Today, none of these factors can be used to contest a divorce in Illinois. If one spouse wants to end the marriage, they only need to demonstrate that irreconcilable differences exist. The court presumes such differences exist if the spouses have lived separately for at least six months.

When Can a Lack of Sex Matter? The Law on Annulment

While Illinois does not allow fault-based divorce, annulment there is one the one significant exception where sexual incapacity can play a legal role.: annulment Unlike a divorce, which dissolves a valid marriage, an annulment (or declaration of invalidity of marriage) treats the marriage as if it never legally existed.

Under 750 ILCS 5/301, a marriage can be declared invalid if:
• One spouse lacked the physical capacity to consummate the marriage, meaning they are physically incapable of engaging in sexual intercourse.
• The other spouse did not know about this incapacity at the time of marriage.
• The petition to declare the marriage invalid is filed within one year of discovery.
It is crucial to note that annulment is only available if the incapacity is physical – not psychological, emotional, or based on personal preference. For example, if a spouse refuses to engage in sexual relations due to a lack of desire or religious beliefs, this would not qualify. The statute specifically requires that the incapacity be a physical condition that prevents consummation.
Furthermore, the law requires that the lack of knowledge be genuine. If a spouse knew before the marriage that their partner had a condition preventing sexual relations but chose to marry them anyway, they cannot later seek annulment on this basis.

Why Timing Matters in Annulment Cases

One key difference between annulment and divorce is the strict time limit for filing. A spouse must petition to declare the marriage invalid within one year of discovering the physical incapacity. This is a relatively short window, particularly compared to the broad availability of no-fault divorce, which does not have such restrictions.

If a spouse fails to act within this timeframe, they will no longer have the option of annulment and will need to pursue a standard dissolution of marriage instead.

Takeaways for Illinois Couples

While the law does not allow for fault-based divorce, Illinois does recognize that a spouse’s physical inability – as opposed to unwillingness – to engage in sexual relations may be grounds for annulment.

However, this option is limited in scope, requires proof of physical incapacity, and must be pursued within a strict timeline.

For couples facing issues related to intimacy in their marriage, the legal system may not offer direct remedies, but understanding the available options is essential. Whether considering annulment or divorce, consulting with a knowledgeable family law attorney can provide clarity on the best path forward.

Colleen M. Breems, Esq., Partner, and Justin Smith

For more on Ms. Breems, please visit: https://beermannlaw.com/team/colleen-m-breems/.

[1] https://www.cbsnews.com/news/divorcee-stopped-having-sex-husband-wins-court-appeal-france/