On August 16, 2016, the Illinois Supreme Court decided that essentially the Hewitt decision in Illinois “remains good law.” Hewitt involved property rights of a couple in a non-marital relationship. Gitlin on Divorce: A Guide to Illinois Matrimonial Law introduces the seminal Hewitt case as follows:
The 1979 Illinois Supreme Court case of Hewitt v. Hewitt1 is known as the Illinois “Mini Marvin case.” Marvin v. Marvin,2 involving movie actor Lee Marvin, ruled that a cause of action on an express oral contract was stated by the plaintiff when she alleged “an oral agreement that while the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” Illinois, in Hewitt, however, rejected the California Marvin position and ruled that on the basis of Illinois public policy “it is (not) appropriate for this court to grant legal status to a private arrangement substituting for the institution of marriage sanctioned by the State.”
177 Ill. 2d 49 (1979).
218 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (1976).
It had appeared that Illinois might make inroads regarding Hewitt based upon the Illinois 2014 appellate court case of Blumenthal (and the 2015 appellate court case in Tummelson v. White).
Unfortunately, the Illinois Supreme Court applied a strict application of Hewitt in Blumenthal v. Brewer, a case that has critical implications for same sex couples. The National Center for Lesbian Rights couched the case this way:
The National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn arenece representing Eileen Brewer, in a case seeking to end discrimination against unmarried couples that prevents them from accessing the same legal remedies that are open to others. Illinois courts currently bar unmarried couples from enforcing property disputes when they break up because of a 1979 ruling by the Illinois Supreme Court, Hewitt v. Hewitt, 77 Ill.2d 49 (1979), which was based on outdated laws that previously criminalized and penalized non-marital relationships.
Eileen and her partner Jane built a life together over 26 years, intertwining their finances, sharing a home and raising three children. While her partner was the primary breadwinner, Eileen was first and foremost responsible for tending to the home and children. When their relationship ended, Jane sought to retain an unfair portion of their shared home and assets. The trial court dismissed Eileen’s claims that their joint property should be fairly divided, holding that the Hewitt rule prevents unmarried couples from having any property or contract rights against each other.
The lawsuit argues that unmarried couples should have the same property and contract rights as all others, that the Hewitt case is no longer in effect because Illinois law and policy has completely changed since 1979 and now recognizes many rights for unmarried couples, and that enforcing the Hewitt case would violate the United States and Illinois Constitutions’ guarantees of equal protection and due process.
The parties in Blumenthal became domestic partners in either 1981 or 1982. One partner attained a law degree and the other a medical degree and as the years passed the allocated their work and family responsibilities to care for their three children. Their marriage ended in 2008. The Defendant was then a judge and she counter-claimed, among other things, for constructive trust over the residence.
The 2014 Illinois appellate court decision in Blumenthal had ruled that courts may not discriminate against unmarried couples by preventing them from enforcing property claims against one another when they break up. The appellate court held that Illinois’ “public policy to treat unmarried partnerships as illicit no longer exists” and that Brewer (the Defendant) could “proceed with her claims against her former domestic partner” regarding the shared property they built up during their 26 years together. Blumenthal sought and obtained a review by the Illinois Supreme Court. Unfortunately, the Illinois Supreme Court rejected the argument that Hewitt is outdated and conflicts both with the constitutional protection now given to unmarried relationships and with Illinois’ current legislative policies mandating equal treatment of all families.
The core portion of the decision states:
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” [Obergefell v. Hodges, 135 S. Ct. at 2607], 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. Legislatures may, of course, decide that matters of public policy do warrant special consideration for non-married, same-sex couples under certain circumstances, notwithstanding the fact that the institution of marriage is available to all couples equally. What is important for the purposes of this discussion is that the balancing of the relevant public policy considerations is for the legislature, 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.
It could be argued that Blumenthal falls into the judicial restraint camp in terms of deferring to the originally stated legislative intent. However, one should consider this in keeping with the United States Supreme Court mandate in Obergefell. The problem is that same sex couples could not marry. It is true that such couples could have been married in other states and that all states grant recognition to such marriages even though they were barred in their individual states. But what would need to occur would not only for there to be a marriage, but also a post-nuptial agreement specifically adopting, in essence, what is the marital property scheme back to the date of what is generally the couples “civil commitment ceremony.” The problem with this line of thinking is that it places undue burdens on same sex couples. Following a 20 plus year same sex relationship at a time when it may be undergoing an irretrievable breakdown, it is unrealistic to assume that the couple will be able to negotiate a post-nuptial agreement.
There are two take-aways from Blumenthal:
- Same sex couples should consider a post-nuptial agreement (and a premarital agreement if they have already been in a longer term relationship);
- The legislature should amend the statute to address the problems inherent with the unequal treatment. It makes sense not to extend the “benefits of marriage” to couples who could have gotten married. But it does not make sense to deny potential property rights to non-married couples merely because it was impossible for them to become married at the time of their civil commitment to one another.
The dissenting opinion by Justice Mary Theis joined by Justice Anne Burke was better reasoned and called the majority ruling “an oddly myopic and moralistic view of cohabitation.” Well stated!