In Blumenthal v. Brewer, the Illinois Supreme Court was asked to overrule its thirty-seven year old decision in Hewitt v. Hewitt and hold that Illinois would join the vast majority of states in recognizing a cause of action for equitable division of property between unmarried domestic partners. Last Thursday, a divided court declined that invitation, holding that recognizing such quasi-contract claims would be inconsistent with Illinois’ ban on common-law marriages. Our detailed summary of the underlying facts and lower court rulings in Blumenthal is here.
Blumenthal began in 2010 when the plaintiff filed her complaint seeking partition of the residence she had shared with her long-time domestic partner, the defendant. The defendant filed a counterclaim, expressly alleging that the parties’ relationship had been “identical in every essential way to that of a married couple.” The counterclaim sought (1) imposition of a constructive trust on the residence; (2) division of the residence; (3) a constructive trust over the annual net earnings from the plaintiff’s medical practice, or in the alternative, restitution of funds used from the defendant’s account in connection with the purchase of the practice; and (4) apportionment of the residence’s value taking into account amounts spent by defendant to maintain it. The Circuit Court dismissed the counterclaim as barred by Hewitt. The Appellate Court reversed, holding that Hewitt was obsolete, given the enormous changes in Illinois’ legal attitude towards nonmarital cohabitation since 1979.
In an opinion by Justice Karmeier, the Supreme Court reversed. The Court began by pointing out that most of the defendant’s counterclaim arguments suffered from two fatal procedural flaws. The ruling dismissing the counterclaim had been appealed pursuant to Rule 304, following the trial court’s certification (for anyone who isn’t an Illinois lawyer – Illinois Supreme Court Rule 304 is more or less analogous to a Federal 1292(b) interlocutory appeal by permission). The problem was, the majority pointed out, that a Rule 304 certification doesn’t make the order appealable if it wasn’t a severable part of the overall controversy. But here, the Court found, the counterclaim was just a different approach to the same thing the main case was about – partition of the couple’s property. As such, certification or no, there was no way to make the counterclaim order appealable. And procedural problem number two, according to the majority – the Appellate Court had no authority to, in essence, overrule Hewitt. Ordinarily, the majority wrote, it would merely vacate the Appellate Court and remand. But here, the proceedings on the principal claim had gone all the way to their finish, and the judgment was now final (neither party having appealed). So most of the counterclaim was moot anyway.
Count 3 of the counterclaim, which sought a constructive trust or restitution in connection with the medical practice, was separate from the underlying property dispute, however. Nevertheless, the constructive trust claim had to fail, according to the majority. The defendant couldn’t be the beneficiary of a constructive trust over the medical practice, since the Medical Corporation Act and the Medical Practice Act of 1987 barred non-doctors from having any “ownership, management, or control” of a medical corporation.
But that left the restitution remedy, and at last, the majority squarely faced Hewitt. After reviewing the legal background to Hewitt, the majority declined to overrule the decision. The Court noted that the General Assembly has enacted, repealed and amended a great many family-related statutes in the years since Hewitt – the same legal developments which had persuaded the Appellate Court that Hewitt was obsolete – but had left the foundation of that decision (the ban on common-law marriage) in place. Based on that, the majority found no evidence that the public policy which Hewitt was based upon had changed at all. On the contrary, according to the majority, the “current legislative and judicial trend is to uphold the institution of marriage,” citing the U.S. Supreme Court’s decision in Obergefell v. Hodges striking down bans on same-sex marriages. So until the legislature intervened and changed the public policy barring common-law marriages, the majority found Hewitt was still good law and the restitution claim, since it rested on the parties’ relationship, had to fail.
Justice Theis wrote a separate opinion concurring in part and dissenting in part, joined by Justice Burke. The dissenters had no quarrel with the decision holding that most of the underlying judgment was not appealable, or with the holding that the medical corporation statutes barred the constructive trust claim. But the dissenters would have overruled Hewitt. According to the dissenters, the majority had characterized Hewitt as being a straightforward affirmation of the public policy against common law marriage, but “[i]n fact, Hewitt did much more.” Hewitt “etched into the Illinois Reports the arcane view that domestic partners who choose to cohabit, but not marry, are engaged in ‘illicit’ or ‘meretricious’ behavior at odds with foundational values of ‘our family-based society'” – a statement which the dissenters labelled “sweeping and near-defamatory.”
According to the dissenters, virtually all of the legal support for Hewitt has disappeared. Illinois’ criminal prohibition against cohabitation was repealed in 1990. The Hewitt court had cited to Illinois’ rejection of no-fault divorce, but Illinois adopted no-fault divorce only a few years later, in 1984. The section of the First Restatement of Contracts quoted in Hewitt which defined contracts between people in intimate relationships as illegal was deleted by the Second Restatement, published in 1981. Forty of fifty states have bans on common-law marriage similar to Illinois’ statute, but courts in the “vast majority” of those states nevertheless recognize property claims between former domestic partners – without “reviv[ing] the doctrine of common-law marriage in jurisdictions that have abolished it. . . Illinois is a clear outlier on this issue.” The dissenters declared that “Hewitt must be overruled because it is outmoded and out of touch with contemporary experience and opinions on cohabitation.”
Although the majority had interpreted the legislature’s action in making a host of changes to domestic relations law while leaving the ban on common-law marriage untouched as supporting retention of Hewitt, the dissenters disagreed. After all, while the legislature was “well equipped to declare public policy on domestic relations,” the courts had been making equitable divisions of joint assets between family members for more than a century and a half. And even leaving all that aside, the dissenters concluded, the defendant wasn’t seeking “marriage-like benefits” or “rights” in the counterclaim – she was simply seeking to pursue a common-law property claim that any other party would have routinely been permitted.