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Illinois Appellate court opens the door to Common Law Marriage Claims regarding property

December 2014


On December 19, 2014, the Illinois First District Appellate Court issued an opinion in Blumenthal v. Brewer reversing a Chancery Division dismissal of claims for Quantum Meruit and Unjust Enrichment filed by an unmarried domestic partner.  2014 Ill App (1st) 132250.   In Blumenthal, over the course of their twenty-six (26) year marriage-like relationship, the parties "intentionally comingled their shared assets based upon a mutual commitment and expectation of a lifelong relationship, they divided their domestic and work responsibilities to best provide for the three children they had together."  At the end of the relationship, one of the partners filed a complaint seeking a partition of the parties' home and Respondent filed a Counter-Complaint which sought to be awarded the Petitioner's interest in the home to equalize the parties' assets.  The Petitioner filed a Motion to Dismiss asserting that the Counter-claim required the recognition of common law marriage which is improper under the Illinois Supreme Court ruling in Hewitt v. Hewitt,  77 Ill. 2d 49 (1979).

The Appellate court reviewed a long history of the social and legislative changes that have occurred since the Hewitt decision, including the codification of the Premarital Agreements Act (recognizing parties rights to create a private contract on how to end their relationships); the enactment of the No-Fault Divorce Act (finding that there is no longer a general public policy opposing agreements contemplating divorce a factor in Hewitt); the enactment of the Illinois Religious Freedom Protection and Civil Union Act; as well as numerous other social changes post-Hewitt.  Further, the court addressed the unintended consequences of Hewitt finding that it may actually discourage parties from getting married as the party who has the assets in their name will be reluctant to get married and be subject to dividing that property.  "In short, the enactment of statutes providing for no-fault divorce and the enforcement of prenuptial agreements have resolved Hewitt's concern that recognizing property rights between unmarried cohabitants would somehow contravene the public policy of strengthening and preserving the institution of marriage." 

The Take Away

This is a very significant ruling and a dramatic departure of the reluctance of Illinois courts to recognize the rights of parties in a marriage-like relationship to assert property claims for the estate that is created when parties maintain a "marriage-like" relationship.  Inasmuch as the appellate court essentially overrules the Illinois Supreme Court's ruling in Hewitt, there will undoubtedly be further legal challenges, as the decision does not completely bring about recognition of common law marriage in Illinois.  For example, the court found that many states that do not recognize common law marriage allow parties to bring claims to resolve their property disputes.  The Blumenthal case now allows an Illinois court to adjudicate the property disputes for un-married partners and provide for an equitable division of parties' assets at the end of a relationship. 

For more information regarding these rulings, please contact Lawrence Byrne (312 261 2155, lbyrne@pedersenhoupt.com) or Victoria Masciopinto (312 261 2206, vmasciopinto@pedersenhoupt.com).