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Illinois Common Law Marriage Making a Comeback?

Common law marriage was abolished in Illinois decades ago.  In the landmark case of Hewitt v. Hewitt from 1979, the Illinois Supreme Court determined there was no standing to seek a share of property acquired before a marriage simply because the parties were living together in some form of non-marital cohabitation.  This has been the rule in Illinois since — if you are not married, the court generally will not intervene to impose marital-like rights on a non-marital relationship.  A recent case, however, brings the validity of Hewitt into question.

In Blumenthal v. Brewer (you can read the appellate court opinion here) a same sex couple lived together for a number of years.  Based on my reading of the case, the facts indicate the relationship was similar to a marriage.  When the relationship broke down, Blumenthal (a highly paid doctor) sought to partition the jointly held property in which both of them had resided until approximately 2008.  However, since 2008, Brewer, though having substantially less assets, had paid virtually all expenses of the home.  Brewer counter-sued asking the court to impose a constructive trust on the home and award her more than 50% of the value and also sought to impose a constructive trust on Blumenthal’s medical practice, which was purchased or started with funds from joint accounts.  Blumenthal moved to dismiss the actions, citing Hewitt.  The appellate court ultimately sided with Brewer, holding that a claim for unjust enrichment against Blumenthal was properly pled and could go forward.

Perhaps most importantly, the appellate court seemed to indicate that the reasoning behind Hewitt and the strong public policy against non-marital relationships no longer existed.  While I am of the opinion that the case should be strictly limited based on the facts of the case (jointly held funds being used for the benefit of one partner leading to an unfair allocation of assets and a jointly held property paid for primarily by one party) there is dicta (language not directly part of the holding) that can be used for a much broader reading.

So the question is now, in Illinois can divorce attorneys handle claims in non-marital relationships?  My suggestion would be for anyone practicing family law to seriously consider re-educating themselves in equitable claims such as unjust enrichment and the doctrine of constructive trust (as these are not legal claims most family law or divorce attorneys deal with often, if ever) or consider consulting or referring to a civil attorney more familiar with torts.  When this case is appealed to the Illinois Supreme Court, which I highly suspect it will be, the current public policy of Illinois with respect to non-marital relationships will be clarified.  However, even under the appellate court’s opinion, the parties to a non-marital relationship still would not have rights similar to that of a spouse or to a division of marital property except through the doctrine of unjust enrichment, which would likely provide for significantly less relief than the financially disadvantaged spouse would obtain in a typical divorce.