specially concurring:
The majority opinion is fair and equitable in result and I concur with it. However, I believe that the central issue in the case requires a different analysis.
The majority reasons that Gloria and John participated in a proper marriage ceremony; however, Gloria’s prior unresolved marriage was an impediment to a lawful marriage. The majority cites section 212 of the 1977 Illinois Marriage and Dissolution of Marriage Act (the Act), which provides that upon the removal of an impediment which would otherwise invalidate a marriage and subsequent cohabitation, the marriage is recognized as valid from the date of removal of the impediment.
At first glance In re Estate of Schisler (1980), 81 Ill. App. 3d 280, 401 N.E.2d 301, would seem to support that proposition. However, we must remember that the Act became effective October 1, 1977. In Schisler the invalid marriage ceremony took place in 1964. The impediment was removed in 1977 subsequent to the effective date of the Act.
However, in the case at bar, the marriage to which the majority seeks to give validity was performed in 1970 and the impediment removed in 1970 — seven years before the effective date of the Act. In Schisler, although the marriage ceremony was performed prior to the effective date of the Act, the removal of the impediment occurred after the effective date. Here, both the marriage and the removal of the impediment occurred long before the enactment of the Act and no part of the marriage transaction or removal of the impediment occurred under the aegis of the new legislation.
In 1977, Illinois adopted a modified version of the Uniform Marriage and Dissolution Act. (Ill. Rev. Stat. 1977, ch. 40, par. 305.) Before its enactment, marriages entered into where one party had a living spouse were absolutely void and only a reaffirmation by a valid marriage ceremony could revive such marriages. See, e.g., Kirkland v. Kirkland (1962), 38 Ill. App. 2d 280, 186 N.E.2d 794.
Since the central issue with respect to the timing of the marriage is the removal of the impediment, it is that critical action that must take place after the effective date of the Act to breathe vitality and life into what would otherwise be a void marriage. Had the parties entered into marriages with others during the period from 1970 to 1977, to whom would they be married after the effective date of the Act?
The majority misinterprets the legislative intent as to the retroactive effect of the Act. When detractors of the 1977 Act sought to make it applicable only to marriages entered into after the effective date of the Act, the sponsor acknowledged that it would be folly to have two marriage laws.2 The Act has application to the marriages existing at the time of enactment. Issues like marital property, child custody and a host of other provisions will be considered in light of the 1977 Act notwithstanding celebration of the marriage prior to the Act.
But the marriage of Gloria and John was not an existing marriage at the time of the effective date of the Act and no cognizable event took place after the effective date of the Act which would remove any impediment to the marriage of Gloria and John. I disagree with the trial court, which suggested that their continued cohabitation after the effective date of the Act was sufficient.
Although like the majority I believe that the trial court was correct in determining that the parties celebrated a marriage in 1970 and thereafter shared a rocky off-and-on existence for the next 16 years until John’s death, the actions of the parties prior to the enactment of the Act do not bring them within the penumbra of the Act by reason of section 212, but rather by section 305, which deals with the rights of a putative spouse.
That section provides:
“Any person, having gone through a marriage ceremony, who has 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 knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited, under Section 212, or declared invalid, under Section 301 ***.” Ill. Rev. Stat. 1991, ch. 40, par. 305.
The purpose of section 305 is to provide a remedy for those persons who have celebrated a marriage ceremony and cohabited with each other and who in good faith believe themselves married, but who for other reasons would be denied the right of marriage. Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 64-, 394 N.E.2d 1204; Ill. Ann. Stat., ch. 40, par. 305, Supplement to Historical & Practice Notes, at 17 (Smith-Hurd 1992), citing In re Marriage of Flores (1981), 96 Ill. App. 3d 279, 421 N.E.2d 393.
The rights of a putative spouse include, among others, the rights of maintenance (In re Marriage of Belluomini (1982), 104 Ill. App. 3d 301, 432 N.E.2d 958) and inheritance. However, the primary inquiry in determining rights under section 305 is consideration that the putative spouse had the requisite good-faith belief in the validity of the marriage. Hence, we consider the subjective attitude as well as the knowledge of the putative spouse and limit that spouse’s rights to the period in which he or she was unaware of the invalidity of the marriage. See Hewitt, 77 Ill. 2d at 64.
Our statute is specifically drawn to provide for termination of the status of putative spouse and that time is when the putative spouse no longer has a good-faith belief in the validity of the marriage. (Daniels v. Retirement Board of Policemen’s Annuity & Benefit Fund (1982), 106 Ill. App. 3d 412, 435 N.E.2d 1276.) In Daniels, the plaintiff was always aware that her police officer husband was not divorced from his first wife; therefore, recognition of her rights under section 305 was not available to plaintiff to apportion her putative spouse’s pension.
Similarly, section 305 is not available to a putative spouse for loss of consortium where the accident occurred prior to the ceremony. Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 415 N.E.2d 1094.
The language of the statute also frees us from the impediment that the marriage was celebrated prior to the adoption of the Illinois Marriage and Dissolution of Marriage Act in 1977 since, by its terms, it does not apply to common law marriages contracted in the State after June 30, 1905. We are led to the conclusion that it must apply therefore to marriages other than common law contracted during the period prior to the enactment of the 1977 revision.
In the case at bar there is little to indicate the scope of Gloria’s knowledge as to the infirmities of her marriage and when she became aware of those infirmities. However, the record does disclose that in 1989 she became aware of those infirmities after John’s death. In her direct testimony, she stated:
“I thought I was divorced from him in March. When I finally found out that I was truly divorced from Mr. McKuen was a couple of months ago [sic].”
Later on cross-examination she was questioned by defense counsel:
“Q. You applied for a marriage license with John on August 4th and you believed that got your divorce on March, 1970. Alright. And you would know that in August, you would know in August that you believed you got your divorce in March.
A. I still believe that. Yes.”
Accordingly, what little evidence we find in the record as to Gloria’s good-faith intentions clearly indicates that she was unaware that her marriage was the subject of any infirmities until after the death of John; her rights to participate in his property accrued pursuant to the provisions of section 305.
I believe, therefore, that the judgment of the circuit court of Cook County should be affirmed because Gloria has brought herself within the application of section 305.
That these are critical decisions for the court and the legislature is best evidenced by the Supreme Court:
“If there is one thing that people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.” Estin v. Estin (1948), 334 U.S. 541, 553, 92 L. Ed. 1561, 1571, 68 S. Ct. 1213, 1220 (Jackson, J., dissenting), quoted in Note, Rights of the Putative Spouse Under Section 305 of the Illinois Marriage and Dissolution of Marriage Act, 3 S. Ill. U. L.J. 423, 423 (1978).
2See 80th 111. Gen. Assem., House proceedings June 15, 1977, at 27 (statements of Representatives Stearney and Jaffe).