Hewitt back on the books

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

January 2017

The year 2016 was pivotal in defining the rights of cohabitating couples in a marriage-like relationship. It is the year the Illinois Supreme Court reaffirmed its 1979 decision in Hewitt v. Hewitt, 77 Ill.2d 49 (Ill. 1979), “that Illinois public policy … precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriagelike relationship between the parties.” Blumenthal v. Brewer, 2016 IL 118781.

Hewitt observed it was a job for the legislature, not the judiciary, to grant legal status to unmarried cohabitants and “that judicial recognition of mutual property rights between unmarried cohabitants” would contravene the policy of Illinois Marriage and Dissolution of Marriage Act (IMDMA). Hewitt, 77 Ill.2d at 61, 66.

Two years ago, the Illinois Appellate Court provided hope to those who think Hewitt is outdated and no longer reflects public policy in Illinois, particularly when it comes to same-sex couples who were prohibited from marrying before legalization of same-sex marriage. See Blumenthal v. Brewer, 2014 IL App (1st) 132250.

In Blumenthal, the appellate court held a woman, who was prohibited from marrying her domestic partner of 26 years, was not barred from bringing common law property claims against her partner. Last year, in a different court case, the appellate court made clear it was not attempting to overrule Hewitt in deciding Blumenthal; rather, it believed Hewitt did not apply to that situation and was limited to opposite-sex couples who had the right to marry, but chose to cohabitate instead. In re Marriage of Allen, 2016 IL App (1st) 151620.

Accordingly, in Allen, the appellate court refused to extend Blumenthal to a man and woman who lived together for 13 years before they wed. “Judicial recognition of their relationship would have been inconsistent with Illinois law, particularly, the express ban on common law marriage.” Allen, 2016 IL App (1st) 151620, ¶12.

Two days after Allen was decided, the Illinois Supreme Court made the final pronouncement on Hewitt. The court, in a 5 to 2 decision, reversed the appellate court in Blumenthal, confirming that Hewitt applies to all unmarried cohabitants, including same-sex couples who previously did not have the lawful right to marry. Blumenthal v. Brewer, 2016 IL 118781.

Societal norms have changed dramatically since 1979 with the advent of same-sex marriage, the extension of benefits and rights to unwed couples and their children and recent amendments to the IMDMA. The Supreme Court majority fully recognized these changes, but held Hewitt remains good law, particularly since the Illinois legislature has remained steadfast in prohibiting common law marriage. See 750 ILCS 5/214.

Without a legislative policy change abrogating Hewitt, the Supreme Court majority did not see fit to overturn it. The court also rejected claims of due process and equal protection, finding nothing irrational or discriminatory in refusing to grant benefits and protections under the IMDMA to persons who do not enter into marriage. Blumenthal, 2016 IL 118781, ¶87.

The dissent disagreed, imploring the majority to “discard[] Hewitt as an outmoded and unfair rule for all domestic partners” and encouraging it to consider the (un)constitutionality of denying the protections of common law to persons who were prohibited from legally marrying one another because of their sexual orientation. Blumenthal, 2016 IL 118781, ¶¶92-127.

Illinois courts must follow the precedent established in Hewitt and Blumenthal, notwithstanding profound changes in societal norms and overt suggestions to the legislature to allow mutual property rights between unmarried cohabitants in limited circumstances. For now this means unmarried persons cannot create marriagelike benefits themselves without a legal relationship.

These individuals still have the right to make express or implied contracts with each other for property or recovery of funds, however, the contracts must be based on something other than their marriagelike relationship in order to be enforceable.