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
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
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
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
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.”