8460794157_f1b5d57432_zIn Hewitt v. Hewitt in 1979, the Illinois Supreme Court decided that for public policy reasons, Illinois courts cannot decide property disputes between unmarried couples. In the closing days of the March term, the Court agreed to decide whether or not Hewitt remains good law in the context of same-sex domestic partner relationships.

According to the complaint in Blumenthal v. Brewer, the parties became domestic partners in 1981 or 1982 while they were graduate students. One partner attained a law degree, the other a medical degree. The couple had three children, and subsequently allocated work and family responsibilities to care for their children. In 2002, they went through the procedures to cross-adopt their three children. In 2003, the couple registered as domestic partners.

The parties’ relationship ended in 2008. In a separate action, the parties resolved issues of custody, child support and responsibility for certain child expenses. The plaintiff – a physician – filed suit seeking to partition the home she owned with her former domestic partner. The defendant, who was by then a judge, counterclaimed for various remedies, including for a constructive trust over the residence and the physician party’s net earnings. The plaintiff successfully argued that Illinois law doesn’t recognize property claims between unmarried domestic partners, citing Hewitt.

On appeal, the defendant argued that Hewitt was no longer good law because the legislative policies underlying that decision either no longer existed or had been modified substantially. In the years since Hewitt, the legislature has repealed the criminal prohibition on nonmarital cohabilitation, prohibited differential treatment of marital and nonmarital children, adopted no-fault divorce and established civil unions (Illinois adopted same-sex marriage after the parties’ relationship terminated). The plaintiff responded that Hewitt was based not on Illinois’ former hostility to claims by unmarried cohabitants, but rather on Illinois’ refusal to recognize common-law marriage – a public policy which was still in place.

The Appellate Court agreed that Hewitt was based, at least to some degree, on the state’s refusal to recognize common law marriage. But Blumenthal was not an attempt to retroactively create a marriage, the Court concluded. The Court emphasized that Illinois law has changed dramatically in the 35 years since Hewitt. Courts across the country are increasingly inclined to enforce agreements between former cohabitants, the court pointed out, citing the landmark California case of Marvin v. Marvin as the beginning of the trend.

Besides, the Court noted, Hewitt might have unintended consequences. Although the Hewitt line of authority was purportedly intended to encourage marriage, in fact, if a more financially well-off partner could turn aside any claim from an unmarried cohabitant, he or she had a significant incentive not to marry. The Court further commented that Hewitt appeared to be based to a significant degree on the legislature’s then-recent decision to reject no-fault divorce, which the Court interpreted as a decision to prevent marriage from becoming a civil contract terminable at will.

Ultimately, the Court concluded that Illinois law no longer disfavors either the parties’ 26-year cohabitation or the property claims at issue between them. The defendant was merely seeking to assert cross claims for relief that is available to anyone else. The Court held that the trial court’s refusal to let her do so was error.

We expect Blumenthal to be decided in eight to ten months.

Image courtesy of Flickr by Alexandre Dulaunoy (no changes).