Changing with the times

Hewitt opinion heads to history books after Blumenthal

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

March 2015

In 1979, the Illinois Supreme Court in Hewitt v. Hewitt, 77 Ill.2d 49 (Ill. 1979), declared an unmarried relationship with partners cohabiting to be illicit, immoral and contrary to public policy. In 36 years, Illinois public policy has changed dramatically — and so has the law, opening up property rights and equitable remedies for unmarried couples.

On Dec. 19, in Blumenthal v. Brewer, 2014 IL App (1st) 132250, the Illinois Appellate Court overruled Hewitt, holding that ruling’s concerns no longer reflect Illinois public policy; therefore, Eileen Brewer may proceed with her counterclaims for constructive trust, unjust enrichment and quantum meruit against Jane Blumenthal, Brewer’s former domestic partner of 26 years.

The appellate court reversed the dismissal of Brewer’s counterclaims based on the Hewitt analysis alone and remanded to the trial court to consider the parties’ other arguments. Whether Brewer’s claims will prevail in chancery remains to be seen, but according to Blumenthal, Hewitt no longer impedes one’s right to bring the same common law claims available to other people to resolve a property dispute with a former domestic partner.

Before Blumenthal, the door was closed on unmarried couples seeking to assert rights to a fair share of property in the absence of a valid contract independent of the cohabitation relationship.

Courts reasoned that under Hewitt, a quasi-marital relationship was against public policy and without legislative change, and no matter how harsh the results, the courts could not grant mutual property rights between unmarried cohabitants without some type of contract separate from the cohabitation.

As recently as 2012, in Delderfield v. Schott, 2012 IL App (1st) 111005-U, the appellate court applied Hewitt to affirm summary judgment for the defendant with respect to similar claims Brewer brought against Blumenthal based on both monetary and non- monetary contributions provided during the parties’ cohabitation.

Delderfield held that to allow such claims based on funds and services intrinsically tied to the cohabitation would be contrary to Hewitt, akin to recognizing common law marriage and against public policy of strengthening and preserving the institution of marriage.

However, as Blumenthal observed, denying unmarried cohabitants the right to pursue common law property claims may actually create a disincentive to marry, thereby weakening the institution of marriage.

Since Hewitt, courts have granted constitutional protection to unwed couples, same-sex and opposite-sex, and have extended a multitude of benefits and rights to unwed couples and their children.

Illinois public policy now embraces the notion of same-sex relationships and is clearly more receptive to cohabitation without marriage.

This policy shift is evidenced by the enactment of no-fault divorce, enforcement of pre-marital agreements, decriminalization of cohabitation, creation of the Domestic Partner Registry and enactments of the Civil Union Act in 2010 and the Marriage Fairness Act in 2014.

However, none of this legislation has granted marital property rights to unwed or uncivil-unionized cohabitants.

In fact, statutory law pertaining to divorce expressly allows divorcing couples to keep all their pre-marital property, including property acquired during cohabitation prior to marriage, except in limited circumstances.

By allowing Brewer, a Cook County circuit judge, to pursue claims for constructive trust, unjust enrichment and quantum meruit based on both domestic services and financial contributions, Blumenthal has opened the door to create property rights for unwed cohabitants akin to marital property rights.

This is beyond the well-established right of all individuals, cohabitants or not, same-sex and opposite-sex, to enforce a valid contract and to recover funds and property independent of the cohabitation relationship.

Blumenthal raises myriad questions, not the least of which is, how can the appellate court overrule the Supreme Court?

In general, Supreme Court decisions are binding precedent on all courts throughout the state until the Supreme Court overrules itself or the constitution or state laws are amended.

The appellate court felt there were enough dramatic changes in legislation and shift in public policy to override Hewitt and reverse the dismissal of Brewer’s common law claims.

Blumenthal is touted as a major step toward ending discrimination against same-sex, unmarried couples and is considered by many to be right, fair and just in light of the modern view.

It also presents a sea change in Illinois case law and departure from Hewitt’s pronouncement 36 years ago that mutual property rights of unmarried couples are unenforceable, contravene public policy and are within the province of the legislature.