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      Get Smart on the Web   09/16/2016

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marie8188

Illinois?

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Hi guys,

Sorry if this question might have been answered numerous times. Anyway, I know in Illinois it says first cousins must be over 50yrs before they can get married. I read one website that mentioned half cousins can marry and another site stating they can't? My fiance and I are half first cousins. When we talked to the clerk in Chicago they were rather rude and stated no type of cousins can marry in Illinois, but I don't think that's true? Is it just not possible to get married in Illinois until we're 50? I know we don't want kids, but I don't feel comfortable asking my fianc? to have surgery to become sterile and I've always assumed doctors would just be a complete pain if I even bothered mentioning I'd like my girl stuff tied/removed. We were talking about getting married in my home state because it is legal there, but would Illinois even recognize us as being married? All the law stuff is so confusing...Thanks for help and support!

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http://www.cousincouples.com/info/statelaws.htm#IL

I've spent well over 100 hours working on the state law page, http://www.cousincouples.com/?page=states, and I know how confusing the laws can be. It appears that your state makes a distinction between "half and full blood;" read the statue at the very top of this message. A word of caution, it could have changed. This was copied more than 10 years ago. You should be able to find the current law at your state's legislative website.

It doesn't appear to prohibit 1/2 cousins from marrying. The "clerk" you spoke to isn't an attorney or a paralegal. You could ask a local family law attorney just to be sure, or possibly even ask the judge if you must. Personally, I would just get married and be done with it. If they insist that you can't marry, you could marry in Tennessee.

Anyone would have a heck of a time proving the law includes half cousins who married out of state. Just go for it. It appears legal to marry in your state or Tenn., but I am not an attorney either.

Let me know if you find out anything different.

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The links given in the reply do not say that half first cousins can marry in Illinois. Cousins of the first degree includes half-cousins. They can't marry unless they're unable to have children. Wikipedia says that first cousins, including half, can't marry in Illinois unless sterile and that out-of-state first cousin marriages are not recognised by Illinois.

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I seriously doubt that 1st degree cousins include 1/2 1st cousins.  Where do you get your information?

Wikipedia is not a credible reference site. You may as well get your information from theonion.com.

I can find no American legal chart that explains what a 1st degree cousin is! It is different in Cannon law, genealogy and various legal systems around the world.

I emailed an attorney in Ill who wrote an article, "Can you marry a cousin in Ill?" Maybe he will give me a straight answer.

If you can find the original wiki article and find the reference citation for these facts, that could be helpful. Much of the stuff on there is not cited and can't be trusted. Any Tom, Dick, or Harry can edit those pages.

The links given in the reply do not say that half first cousins can marry in Illinois. Cousins of the first degree includes half-cousins. They can't marry unless they're unable to have children. Wikipedia says that first cousins, including half, can't marry in Illinois unless sterile and that out-of-state first cousin marriages are not recognised by Illinois.

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First-degree cousins means first cousins, including double cousins and half cousins, unless stated otherwise. Half-cousins are people who have/had one grandparent in common. Second cousins are people who have no grandparents in common, but had great-grandparents in common. A second cousin is a parent's first cousin's child, or to put it another way, a grandparent's sibling's grandchild. First cousins typically have/had two grandparents in common. Half-cousins are a type of first cousin, but distinct from others in so much as they have one grandparent in common instead of two. They are not second cousins, who do not have any grandparents in common. Illinois does not allow first cousins, including half-cousins, to marry - unless they are unable to have children. Illinois allows cousins to have sex and cohabit. There are no laws anywhere in the US against sex/cohabitation/marriage between second cousins or more distant cousins.

These distinctions are relevant not only in regard to marriage/sexual relationships, but also in other legal situations, such as intestacy. In my country, a person can inherit from an intestate first cousin (including half-cousin), but not from an intestate second cousin. Many people do not understand what each relationship is called, and are confused/misinformed. The differences are of significant legal relevance.

The Wikipedia article is Cousin marriage law in the United States by state. 

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John, thanks for your replies. I will get to the bottom of this next week and post my findings. It is possible that Ill defines cousins of the 1st degree somewhere in the statutes, or perhaps there is some case law or AG position. I think I have access to case laws; my college has a law school, but I'm not sure if I have access to those case law databases.

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marie8188, John0, and Boss,

I'm in  Illinois as well. Funny, I've never had call that I can remember to actually look at the law here. I've dug into several other state's statutes, but not this one. I may as well get the standard disclaimer out of the way also. We do not give legal advice here on the site. That being said, let's dig a little deeper, shall we?

I almost got in this thread with all of this yesterday, but was quite preoccupied, and didn't. I have a little time this morning, so, I'm going to fetch the links I found yesterday, if I can find them here. Ah yes, here we have it: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2086&ChapterID=59

Under Part 1 (General Provisions) at Sec. 102(2) you will note as a listed purpose "strengthen and preserve the integrity of marriage and safeguard family relationships;" This could be key in later considerations, but, I could make the argument that it is all mute, and, will in a moment.

It is true that the law states at (and, get a cold drink of some sort, here's where it gets dry) Part 2, Sec.212 "Prohibited Marriages.

    (a) The following marriages are prohibited:

        (1) a marriage entered into prior to the dissolution

   

of an earlier marriage of one of the parties;

        (2) a marriage between an ancestor and a descendant

   

or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;

        (3) a marriage between an uncle and a niece or

   

between an aunt and a nephew, whether the relationship is by the half or the whole blood;

        (4) a marriage between cousins of the first degree;

   

however, a marriage between first cousins is not prohibited if:

            (i) both parties are 50 years of age or older; or

            (ii) either party, at the time of application for

       

a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile;

        (5) a marriage between 2 individuals of the same sex.

    (B) Parties 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.

    © Children born or adopted of a prohibited or common law marriage are the lawful children of the parties.

(Source: P.A. 94-229, eff. 1-1-06.) " Did you get all of that.......? LOL

Next, at Part 2, Sec. 213 we find: "  Validity.) All marriages contracted within this State, prior to the effective date of this Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State, except where contrary to the public policy of this State.

(Source: P.A. 80-923.)  Here is where you would reference the previously noted "purpose" of the law, which would seem to set the official "public policy" of the State. If the purpose is to "strengthen and preserve the integrity of marriage and safeguard family relationships;" it would seem to me, the State should recognize an out of state marriage, so long as it is harmonious, and "safeguards family relationships." That means relationships between the parties to the marriage, and children born into that marriage, NOT what your Mother-in law or Dad think of it, or siblings, or nosy neighbors. The direct family unit. All others can take a hike.

You will find at Part 2, Sec 216 the following:  Prohibited Marriages Void if Contracted in Another State.) That if any person residing and intending to continue to reside in this state and who is disabled or prohibited from contracting marriage under the laws of this state, shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.

(Source: P.A. 80-923.)  This seems to say "Don't go out of state to avoid the terms of this Act. We will apply this Act on you anyhow." Just below that, at Part 2, Sec. 217 you will see some dribble about Non-Residents, which you can peruse at your convenience, I'll not quote it here.

Now, allow me to pontificate that all of this is a mute point, and I would feel very safe in making this argument in Court. I will refer back to Part 2, Sec. 212. You will note, that, all prohibited relations state specifically "whether the relationship is by the half or the whole blood" RIGHT UP TO, BUT NOT INCLUDING COUSINS OF THE FIRST DEGREE. My argument would be "Your Honor, if the Legislature had intended to include cousins, whether of the half or full blood, would they, or SHOULD they not have specifically stated that in the statute, as they obviously did with these other degrees of consanguinity?" I'm fairly confident the Judge would say "Why, Mr. Hawk, I do believe you are correct....."

Again, this IS all speculation, and I'm NOT an attorney, but I have eaten the lunch of one who was suppose to be "the best in the county," and embarrassed him to the point of him walking out before his clients signed the paperwork stating I had won. However, judges are SUPPOSE to interpret the law, not speculate on the intent of the lawmakers in the crafting of the law. That doesn't stop them from doing so, it just forces an appeal if they do. I suppose it all comes down to how strong you are in your desire to be together. In Illinois, you will NOT go to jail for a relationship of whatever nature, it would only be a matter of fighting for your right to be happily married. (I have read, and may dig deeper to verify, that Illinois and two other states have quietly stopped prosecuting even what we consider incestuous relationships between consenting adults.)

  I hope this gives you some hope, and ideas as to how to proceed. In an strict interpretation of what I see in the Act, there is nothing preventing half cousins from marrying.... but again, that is my view. Feel free to copy this, and bounce it off a family law practitioner.   

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Elizabeth Whelan, Plaintiff-Appellant, v. Clarence Whelan, Defendant-Appellee

Gen. No. 10584

Appellate Court of Illinois, Second District

346 Ill. App. 445; 105 N.E.2d 314; 1952 Ill. App. LEXIS 306

OVERVIEW: The wife sought maintenance, and the husband counterclaimed for divorce on the grounds of the wife's intoxication. He then amended the complaint to request a dissolution on the ground that they were first cousins and that while residents of Illinois, they went to Kentucky to marry because Kentucky allowed marriage between first cousins. The husband contended that because they married in Kentucky when they were residents of Illinois, the marriage was void. The trial court granted the dissolution, and the wife sought review. The court affirmed. It found that while there was a presumption that a ceremonial marriage was valid, the husband met his burden and rebutted the presumption with facts and circumstances that established the invalidity. The court further found that because the parties were both residents of Illinois and that because they went to Kentucky for the sole purpose of evading Illinois law, their marriage was incestuous and void.

-------------------------------------

? 750 ILCS 50/8.  Consents to adoption and surrenders for purposes of adoption

  Sec. 8. Consents to adoption and surrenders for purposes of adoption. (a) Except as hereinafter provided in this Section consents or surrenders shall be required in all cases, unless the person whose consent or surrender would otherwise be required shall be found by the court:(1) to be an unfit person as defined in Section 1 of this Act [750 ILCS 50/1], by clear and convincing evidence; or

(2) not to be the biological or adoptive father of the child; or

(3) to have waived his parental rights to the child under Section 12a or 12.1 or subsection S of Section 10 of this Act [750 ILCS 50/12a or 750 ILCS 50/12.1 or 750 ILCS 50/10]; or

(4) to be the parent of an adult sought to be adopted; or

(5) to be the father of the child as a result of criminal sexual abuse or assault as defined under Article 11 of the Criminal Code of 2012 [720 ILCS 5/11-0.1 et seq.]; or

(6) to be the father of a child who:

  (i) is a family member of the mother of the child, and the mother is under the age of 18 at the time of the child's conception; for purposes of this subsection, a "family member" is a parent, step-parent, grandparent, step-grandparent, sibling, or cousin of the first degree, whether by whole blood, half-blood, or adoption, as well as a person age 18 or over at the time of the child's conception who has resided in the household with the mother continuously for at least one year; or

----------------------------

Here are some info I found in the database. In the adoption section, we can clearly see that the law makes a distinction between half and whole blooded first cousins. The marriage laws make no such distinction, but appears to exclude 1/2 cousins.

----------------------------

The law means exactly whatever a judge says it means. I can find no case law on the issue, nor a statutory definition of what a cousin of the first degree is or isn't.

One solution would be to RESIDE in another state for some time before moving back to Ill. When you return, they would have to honor the marriage from another state since you were not purposely evading state laws. It appears that problems only arise when the parties seek divorce / alimony / child support. But I haven't even considered criminal laws, which is really the only thing I would worry about.

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FWI, here is the criminal portion. Cousins aren't included.

(720 ILCS 5/11-11) (from Ch. 38, par. 11-11)

    Sec. 11-11. Sexual Relations Within Families.

    (a) A person commits sexual relations within families if he or she:

        (1) Commits an act of sexual penetration as defined [table][tr][td]

[table][tr][td][table][tr][td]    [/td][td]in Section 11-0.1  of this Code; and[/td][/tr][/table][/t][/t][/t]

[table][tr][td]        (2) The person knows that he or she is related to the [/td][/tr][tr][td][table][tr][td]

[table][tr][td]    [/td][td]other person as follows: (i) Brother or sister, either of the whole blood or the half blood; or (ii) Father or mother, when the child, regardless of legitimacy and regardless of whether the child was of the whole blood or half-blood or was adopted, was 18 years of age or over when the act was committed; or (iii) Stepfather or stepmother, when the stepchild was 18 years of age or over when the act was committed; or  (iv) Aunt or uncle, when the niece or nephew was 18 years of age or over when the act was committed; or (v) Great-aunt or great-uncle, when the grand-niece or grand-nephew was 18 years of age or over when the act was committed; or (vi)  Grandparent or step-grandparent, when the grandchild or step-grandchild was 18 years of age or over when the act was committed.[/td][/tr][/table]

[/td][/tr][tr][td]    (B) Sentence. Sexual relations within families is a Class 3 felony.

(Source: P.A. 96-233, eff. 1-1-10; 96-1551, eff. 7-1-11.)[/td][/tr][/table]

[/td][/tr][/table][/td][/tr][/table][/td][/tr][/table]

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Anyway check with a local family law attorney about the 1/2 cousin issue. I would get married tomorrow. The only thing that could possibly happen is, during a divorce proceeding, the marriage could be annulled or declared void.

You could also hire an attorney and challenge the outmoded marriage prohibition. The state would have a hard time proving this is a public safety problem in light of modern genetics.

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I wrote to 1/2 dozen attorneys in Ill. My first response was "I don't know but I doubt it [they could legally marry]".

Well if the lawyers don't know, who does? lol

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KC hit it right on the head.  The law means whatever a judge says it means and judges can't even agree all of the time, hence the appeals courts.  Until someone establishes case law, you're flying blind on this one.  As KC pointed out, it will become an issue in the event of divorce.  It could also become an issue in the event of death if there are assets involved.

Best wishes,

CM

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The Wikipedia table has a citation against where it says that half-cousins cannot marry in Illinois. I don't know what the series of numbers and letters mean, but it shows that Illinois has ruled against half-cousin marriages. There's no law against cohabiting.

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Robert, nooooo it doesn't. Now you just wasted 20 minutes of my time. I looked up all of those citations. It's the same info we have here.

If I quoted from Wikipedia in a college essay, I would get heavily penalized and lectured. Or maybe kicked out of the class for being a moron.

Wikipedia is not a credible source for anything! It's an encyclopedia for kids by kids. The straight deal is laid out in this thread if you care to read it. The law, as it pertains to 1/2 cousins, will remain ambiguous until ruled upon by a judge.

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Robert,

^^^ what Boss said, only I don't find it ambiguous myself. All degrees of consanguinity state "whether by the half or whole blood" EXCEPT first cousins. Siblings even include "Or by adoption" but, NOT first degree cousins. So, as far as the letter of the law, ADOPTED first cousins would be able to marry. Do keep in mind, that most of these laws in the States that prohibit them were passed based on erroneous scientific "information" of the day. (Louisiana COULD be an exception, with many of their statutes based on Napoleonic Law. I would have to dig REAL deep to figure that out.) That being the case, even back then, they realized that a half blood relation between cousins would most likely be far enough removed on the old family tree as to satisfy concerns over the genetics. How much of that was taken into consideration, and what role it may have played in the final verbiage of the law would be another lengthy investigation to undertake. For whatever reason, "whether by the half or full blood" was left off of  Part 2, Sec.212 (a)4. That is all that I would need to make the argument. "This is the letter of the law Your Honor. I don't know how much more plain it could be. These other levels of consanguinity have the "half blood" prohibition, and cousins DON'T. Period. It isn't there. There is no prohibition on something that isn't prohibited in the law. Especially when at other points it IS SPECIFICALLY STATED." I wouldn't need a lawyer to win such an argument. I would advise the consultation of a family law practitioner, but I wouldn't get too deep in my pockets with him. There is no need, again, IMHO.     

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I agree Hawk 100%. I would get married tomorrow. Now if they had people gunning for them, well -- there are warmer places to live than Illinois. And we have iced tea and grits. I wouldn't live anywhere that didn't have grits. Otherwise I would have to have them imported from the grit farms.

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I agree Hawk 100%. I would get married tomorrow. Now if they had people gunning for them, well -- there are warmer places to live than Illinois. And we have iced tea and grits. I wouldn't live anywhere that didn't have grits. Otherwise I would have to have them imported from the grit farms.

Boss,

I have a friend who is a best friend of my and Cuz's other favorite cousin, other than each other. This guy is in Nashville, and has written several top country songs. He has an album titled "GRITS." It has a couple of the songs that have been charted, and the title song is an acronym. It is actually G.R.I.T.S. In the song, it is revealed that GRITS stands for Girls Raised In The South.  Good song, and good music out of that boy....... ANYWHO........

marie8188, John0,and Robert etal,

Marie8188,

If you choose to get married in Illinois, and another clerk such as you dealt with in Cook County says the same thing as that one did, here's what you would have to do. You need to make a copy of the statute. Copy/printa from what I have provided you. If this clerk will STILL not recognize your ability to marry legally in Illinois, you immediately say (and this is the exact verbiage) "I would like to appeal your determination to your supervisor." If you can get to the supervisor, you show the statute, with NO 'by the half blood' restriction. If THAT person won't let you do it, you would then say (exact words again) "I reserve my right to a writ of mandamus,(man-DAY'-mus) and intend to file for a continuing mandamus."(This WILL get their attention. A supervisor in the Clerk's office is probably an elected official, or appointed by an elected official. They DO NOT want to get slapped with a mandamus. They KNOW what that is. It is an 'order to perform' from the Superior Court.) Read a few simple mandamus actions, and you can word it to fit your own situation, and I can assure you, I would not be scared to go to court in Illinois, or any of the other States which have similar verbiage. I have NO DOUBT I could prevail. At any rate, I doubt it would go that far. As soon as you say "mandamus", you WILL talk to someone who will pay attention. I have no doubt that I could assure that person that according to the letter of the law, they would not be in conflict by issuing a marriage license.........

Now, go pull their chain, and have some fun with them...........Hawk's Orders...........

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