Despite changing societal views on marriage romantic relationships, and particularly the acceptance of same-sex marriage and domestic partnerships, the Illinois Supreme Court said cohabiting domestic partners still should not enjoy the same rights as divorcing married partners under existing law when dividing up property and assets at the end of the relationship.

On Thursday, Aug. 18, the state’s high court reiterated its 1979 decision in which the court held Illinois law governing marital relationships and divorce had not changed in the decades since, and the lack of action by state lawmakers to do anything about it should be taken to mean the “legislature intended marriage to be the only legally protected family relationship under Illinois law.”

The court’s 5-2 decision was authored by Justice Lloyd A. Karmeier. Chief Justice Rita B. Garman and justices Charles E. Freeman, Robert R. Thomas and Thomas L. Kilbride concurred in the judgment.

Justices Mary Jane Theis dissented. She was joined by Justice Anne M. Burke.

The case centered on the court fight surrounding the fallout from the end of a 26-year same-sex domestic partnership relationship between Cook County Judge Eileen M. Brewer and Jane Blumenthal, a physician.

The couple shared a home and raised children together.

However, the relationship soured, leading to a messy court fight, as they battled over how much money each of them was entitled to from the potential sale of their assets, including their home and Blumenthal’s medical practice.

Brewer asserted she had given Blumenthal the money she needed to purchase an interest in that medical practice, in the interest of improving the family’s finances, and so she asked the court to order Blumenthal to pay her a cut of whatever amount should be generated from the sale of that interest in the practice.

A Cook County judge, however, rejected Brewer’s claims, saying under an Illinois law, which since 1905 had forbidden common law marriage in the state, unmarried couples whose relationships have ended can’t assert the same kind of property claims as can divorcing married couples.

The decision relied on the 1979 Illinois Supreme Court decision in Hewitt v. Hewitt, in which the court had similarly dismissed property claims asserted by a woman who had also dedicated years to a relationship with a man, raising children and sharing a home, but had never legally married, and whose relationship had ended.

Brewer appealed, arguing, in light of the changes occurring in society and in Illinois family law in the decades since, the Hewitt decision should no longer apply.

A state appeals panel hearing the case in 2014 agreed, declaring Hewitt “outmoded and ill-considered” and Brewer’s claim was merely an attempt to allow the members of the couple to “have similar common-law property rights as others that were not in a cohabiting, unmarried relationship.”

The state Supreme Court’s majority, however, said the appellate court lacked the authority to overturn a Supreme Court decision.

But the justices in the majority also rejected Brewer’s contention Illinois law should be seen as “moving toward granting additional property rights to unmarried cohabitants in derogation of the prohibition against common-law marriage.” In support, she pointed to new laws which since 1984, among other alternations of family law, have extended inheritance rights to children of non-married couples, adoption rights to unmarried couples, and legal recognition to both same-sex civil unions and, most recently, same-sex marriages.

This position, they said, “is flatly contradicted by the undeniable fact that for almost four decades since Hewitt, and despite all of these numerous changes to other family-related statutes, the statutory prohibition against common-law marriage … has remained completely untouched and unqualified.”

Justices said the changes to family law, both in the legislature and the courts, have been “to uphold the institution of marriage,” opening marriage to same-sex couples which otherwise would be excluded “from one of civilization’s oldest institutions.”

“While the United States Supreme Court has made clear that ‘[t]he Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,’ nothing in that holding can fairly be construed as requiring states to confer on non-married, same-sex couples common-law rights or remedies not shared by similarly situated non-married couples of the opposite sex,” the majority held.

The majority said the question should be left to the General Assembly and not the courts.

“Indeed, now that the centrality of the marriage has been recognized as a fundamental right for all, it is perhaps more imperative than before that we leave it to the legislative branch to determine whether and under what circumstances a change in the public policy governing the rights of parties in nonmarital relationships is necessary,” the justices wrote.

In dissent, however, Theis said the majority’s decision only serves to affirm a decision she said “was clouded by an inappropriate and moralistic view of domestic partners who cohabit and founded upon legal principles that have changed significantly.”

Additionally, Theis noted, while other states similarly ban common law marriage, most have adapted their legal systems to allow common law property claims to proceed should cohabiting couples break up.

And she said, while the General Assembly may yet address the matter, “courts, however, are better equipped … to help parties divide joint assets using familiar legal and equitable rules.”

“Although the parties had what the majority terms a ‘marriage-like relationship,’ Brewer does not seek ‘marriage-like benefits’ or ‘marriage-like rights’ ... She simply asks to bring the same common-law claims available to other people,” Theis said. “She should be allowed to do so. The fact that Brewer and Blumenthal were once domestic partners should be no impediment.”

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