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The Illinois Supreme Court Closes the Door to Common Law Marriage Claims Regarding Property

December 2016

In December 2014, we reported that the First District Illinois Appellate Court had opened the door to common law marriage claims regarding property in Blumenthal v. Brewer, 2014 Ill App (1st) 132250, essentially overruling the Illinois Supreme Court's ruling in Hewitt v. Hewitt. 77 Ill.2d 49 (1979), which had rejected a woman's common law action to divide assets she had accumulated with her male partner, with whom she had lived and had children, but never married.

Common Law Marriage

Since the early part of the last century, common law marriages have been statutorily banned in the State of Illinois as against public policy. 750 ILCS 5/214 (2010).  In 1979, the Illinois Supreme Court took a deliberate look at the statutory prohibition against common law marriage and again refused to recognize common law claims between unmarried opposite-sex couples as against public policy.  Hewitt v. Hewitt, 77 Ill.2d 49 (1979).   This past year, the Illinois Supreme Court once again undertook an analysis of Illinois public policy, as it relates to extending marriage-like property rights to unmarried cohabitants, and once more reaffirmed its holding in Hewitt that Illinois public policy prohibits unmarried cohabitants from bringing claims designed to enforce mutual property rights based on a marriage-like relationship.  Blumenthal v Brewer.  2016 IL 118781.

Applicable Caselaw

The facts in Hewitt and Blumenthal are almost indistinguishable except that in Hewitt the parties were heterosexual while in Blumenthal the parties were homosexual.  In Blumenthal, after their break-up, Blumenthal, a doctor and long-time domestic partner of Brewer, filed suit to partition their family home they jointly owned while Brewer counter-sued in part for restitution of joint funds the parties had used to purchase Blumenthal's medical practice.  Brewer's restitution suit was dismissed by the trial court based on the holding in Hewitt prohibiting common law marriage claims.  The Appellate Court reversed the dismissal of Brewer's restitution suit finding that Illinois public policy towards marriage had changed significantly since Hewitt.  In its opinion, the First District referred to multiple changes to family-related statutes in support of its claim that Illinois public policy had significantly changed since 1979, including the repeal of the criminal prohibition of non-marital cohabitation, the codification of no-fault grounds for divorce, the 1985 prohibition against differential treatment between marital and non-marital children, the establishment of legal status to civil unions as well as legally recognizing same-sex marriages in 2014.  


Upon review, the Illinois Supreme Court reaffirmed Hewitt, chastising the appellate court for declining to follow Hewitt and violating the principle of stare decisis (lower judicial tribunals are bound to decisions declared by higher courts).  In upholding Hewitt, the Court noted that the various changes in family-related statutes belong to the legislature, not the judiciary, and any decision to reevaluate the law prohibiting common law marriage claims is for the General Assembly. 

The Take Away      

Until the legislature acts to modernize Illinois' approach to marriage and rights of same-sex couples, marriage will remain the "only legally protected family relationship under Illinois law". Blumenthal v Brewer. 

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).