FIFTH DIVISION December 19, 2014

No. 1-13-2250

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

JANE E. BLUMENTHAL, ) Appeal from ) the Circuit Court Plaintiff-Appellee, ) of Cook County ) v. ) 10 CH 48730 ) EILEEN M. BREWER, ) Honorable ) LeRoy K. Martin, Defendant-Appellant. ) Judge Presiding

JUSTICE McBRIDE delivered the judgment of the court, with opinion Justices Gordon and Reyes concurred in the judgment and opinion.

OPINION

¶1 In 2010, Jane E. Blumenthal filed suit to partition a Chicago home she owned with Eileen

M. Brewer, her former domestic partner of 26 years. Brewer counterclaimed for various remedies,

including to receive sole title to the property so that the couple's overall assets would be equalized

after she stayed at home with the couple's three children while Blumenthal was the family's

breadwinner. The trial court dismissed Brewer's counterclaims as factually deficient, relying upon

a 1979 decision, Hewitt v. Hewitt,

,

(1979). In Hewitt, the court

rejected on public policy grounds a woman's suit to divide assets she accumulated with a man

during a 15-year relationship in which they lived together, had three children together, but never

married. Brewer appeals, primarily contending that Hewitt has been implicitly overruled by

1 No. 1-13-2250

subsequent legislation favorable to same-sex domestic partnerships. American Civil Liberties

Union of Illinois and Lambda Legal Defense & Education Fund, Inc., have filed an amici curiae

brief in support of Brewer.

¶2 When a party presents a motion to dismiss a pleading or count as factually deficient, the

court determines whether there are actually sufficient allegations that, if proven, could entitle the

complainant to relief. In re Marriage of Centioli,

,

(2002); 735

ILCS 5/2-615 (West 2010). A motion to dismiss for factual insufficiency is governed by section

2-615 of the Code of Civil Procedure. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc.,

,

(1988); 735 ILCS 5/2-615 (West 2010). The court

must accept all well-pled facts in the complaint as true and draw reasonable inferences from those

facts that are favorable to the complainant. HPI Health Care Services,

,

; Centioli,

,

. Because the issue presented is

a question of law, a reviewing court applies the de novo standard when addressing a dismissal

pursuant to section 2-615. Centioli,

,

; 735 ILCS 5/2-615 (West

2010).

¶3 The pleading at issue here relates the following. Brewer and Blumenthal became domestic

partners in 1981 or 1982, while they were pursuing graduate studies at the University of Chicago.

At no point during their ensuing relationship were same-sex couples legally entitled to marry in

Illinois. The pair, however, exchanged rings as symbols of their lifelong commitment to each other

and presented themselves to their families and friends as a committed couple.

¶4 Brewer subsequently attained a law degree from Harvard Law School and Blumenthal

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attained a medical degree from an undisclosed school.

¶5 After law school, Brewer gave birth to a child in 1990 and a second child in 1992.

Blumenthal gave birth to a child in 1993. The couple gave all three children the same last name.

¶6 To best care for their children, the couple deliberately allocated their work and family

responsibilities. Brewer stayed home for a while as the children's primary caregiver and then

pursued employment in the public sector where she had regular work hours and no travel

requirements. And, as the stay-at-home parent, Brewer spent the greater amount of time in other

domestic tasks, such as supervising home repairs, grocery shopping, and paying the household

bills. This arrangement enabled Blumenthal to devote time to her medical career and become the

family's primary breadwinner. "As a consequence of the allocation of their respective

responsibilities in the family following the birth of their children, Blumenthal came to earn two to

three times as much annually as Brewer"; however, the couple comingled their assets throughout

their 26-year relationship. One such asset was the real estate that was central to Blumenthal's

partition claim and Brewer's counterclaim. The women had jointly purchased a home on Kimbark

Avenue in Chicago's Kenwood-Hyde Park neighborhood in 1999, when their children were ages

six, seven, and nine. They chose to reside in this area due to the proximity of good schooling that

was supportive of the children of same-sex domestic partners. They also jointly-purchased

investment properties outside of Illinois. In addition, between 2000 and 2008, physician

Blumenthal purchased an ownership interest in a six-doctor medical practice. On information and

belief, the funds for this investment came from the couple's joint account. Blumenthal continues to

practice medicine with that group of physicians. In 2002, attorney Brewer was first elected as a

3 No. 1-13-2250

judge in the circuit court of Cook County and she continues in that position. "It was [the couple's]

understanding that Brewer would not suffer any financial disadvantage from the way in which

[they] allocated their parenting and career responsibilities" and "it was [always] their practice to

share equally the same home, food, automobiles, vacations, vacation property, and to the extent

they could, savings and investments."

¶7 The couple also took legal steps because of their lifelong commitment. In 2002, they went

through the procedures to cross-adopt their three children, including undergoing a home study.

Later that same year, the circuit court of Cook County granted their jointly-filed cross-adoption

petition. In 2002, the Cook County board of commissioners created the "Domestic Partner

Registry" so that same-sex couples in Chicago and suburban Cook County could formally

document their partnerships. The local ordinance which created the registry stated in relevant part:

"Our society has created diverse living arrangements and an expanded concept of the family unit";

"Many persons today live as families in enduring, committed relationships other than legal

marriages"; "The County of Cook has an interest in supporting all caring, committed and

responsible family units"; "The County also recognizes that it is in the public interest for persons in

committed relationships and who share common households to be able to register those

relationships formally"; "Over 5,000 companies, foundations, unions, and nonprofit organizations

have domestic partnership benefit programs"; "Cook County would be providing a service to those

companies, foundations, unions and non-profits in Cook County by creating an official depository

of information with a government agency"; and "A government-issued certificate of registered

domestic partnership makes it easier for small businesses to provide benefits to all types of

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families." Cook County Ordinance No. 03-O-18 (approved July 1, 2003). Blumenthal and Brewer

added their names to the county roll in 2003. In registering, they signed an affidavit stating in part,

" 'We, the undersigned, being duly sworn, do declare that on or before

January in the year 1981 we agreed to live as domestic partners, and that we have so

lived since that time. We further state that we have since that time held ourselves

out to be each other's sole domestic partner and that neither of us is married. To

fulfill the requirements established by Cook County for benefits coverage we

further attest that: *** We are each other's sole domestic partner, responsible for

each other's common welfare ***. [Also, we jointly own a residence, and have a

joint credit card and joint checking account, and Blumenthal is the primary

beneficiary of the will executed by Cook County employee Brewer.]' " 1

1 After the Illinois legislature provided for civil unions, the county's domestic partners registry was

phased out. The local ordinance accomplishing that change states:

"Phasing out of domestic partnerships.

(a) In light of the enactment of Public Act 96-1513, the Illinois Religious Freedom

Protection and Civil Union Act, effective June 1, 2011, notwithstanding any other provision of this

Ordinance, or other law, no new domestic partnerships shall be registered after May 31, 2011.

(b) The issuance of a Civil Union license to joint applicants who are registered as domestic

partners to one another shall terminate their domestic partnership when the certificate of Civil

Union is returned to the County Clerk pursuant to section 40 of the Illinois Religious Freedom

Protection and Civil Union Act. No additional filing pursuant to section 42-75 of this Ordinance

5 No. 1-13-2250

¶8 In 2005, when Illinois neither provided for same-sex marriage nor recognized out-of-state

same-sex marriages, Blumenthal and Brewer took out a marriage license in Massachusetts. They

did not, however, marry in that state.

¶9 In January 2008, when the children were teenagers, Blumenthal unilaterally ended her

domestic partnership with Brewer by vacating the family home. The records of this court indicate

that in a separate action, the former partners resolved issues of custody, child support, and

responsibility for expenses such as the children's college costs. In re Custody of J.M.B.,

. By 2011, all three children were emancipated adults.

¶ 10 Blumenthal contributed some of the costs of maintaining the residence in 2008, but as of

January 2009, Brewer became solely responsible for the property's upkeep and its mortgage

payments, real estate taxes, and insurance. Between 2008 and 2013, Brewer spent in excess of

$215,000 on the property. She also contributed at least 15 hours per week of her personal time to

the property's care. Brewer contributed more money than Blumenthal despite the fact that

Blumenthal's net worth, without including inheritances, exceeded and exceeds Brewer's net worth

by more than $500,000. Furthermore, due to the disproportionate time and attention that

Blumenthal was able to give to her career during the relationship, Blumenthal has not only a

valuable medical practice, but also more income and savings than Brewer.

¶ 11 Based on these allegations, Brewer seeks the imposition of a constructive trust over the

Kimbark Avenue residence to prevent unjust enrichment arising from Blumenthal's greater net

shall be required to effect the termination of the domestic partnership between them." Cook

County Ordinance No. 11-O-34, § 42-79 (approved Mar. 15, 2011).

6 No. 1-13-2250

worth at the end of the relationship (count I) or, in the alternative, a partition which adjusts for

Brewer's sole financial liability for the property since 2009 (count II, count IV) and which adjusts

for the value of Brewer's personal hours improving the property since 2008 based on the theory of

quantum meruit (count V). Brewer also seeks the imposition of a constructive trust over the annual

net earnings or the sale of Blumenthal's share of her medical practice to prevent unjust enrichment

or, in the alternative, restitution of the funds that, on information and belief, Blumenthal took from

the couple's joint account between 2000 and 2008 to buy into the six-doctor practice (count III).

¶ 12 Generally speaking, the legal doctrine of unjust enrichment describes a recovery for the

value of a benefit retained to the loss of another when there is no contractual relationship between

them but when "on the grounds of fairness and justice, the law compels the performance of a legal

and moral duty to pay" for that benefit. 66 Am. Jur. 2d Restitution and Implied Contracts § 3

(2013). Put another way, the doctrine does not require that there be any express promise between

the parties. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (2013). Instead, unjust

enrichment implies a contract between the parties so that one party is not allowed to unfairly enrich

herself at the expense of the other party. 66 Am. Jur. 2d Restitution and Implied Contracts § 3

(2013). Terminology such as fairness and justice may suggest that the doctrine provides an

equitable remedy, however, an unjust enrichment claim is an action at law and is sometimes

known as a contract implied at law, a quasi-contract, restitution, or assumpsit. HPI Health Care

Services,

,

("Although there has been considerable

confusion on the matter, unjust enrichment is not an equitable action."). In the Illinois courts, in

order to state a cause of action for unjust enrichment, one need allege only "that there was an unjust

7 No. 1-13-2250

retention of a benefit, including money, by one party to the detriment of another party, against the

fundamental principles of justice, equity, and good conscience." HPI Health Care Services,

,

; Kenneke v. First National Bank of Chicago,

,

(1978). (An alternative branch of unjust enrichment not at issue here

requires allegations of unlawful or improper conduct such as fraud, duress, or undue influence. See

Gagnon v. Schickel,

,

.)

¶ 13 Also relevant is that restitution is an equitable remedy and the basis of liability is unjust

enrichment. Independent Voters of Illinois v. Illinois Commerce Comm'n,

,

(1987).

¶ 14 To recover under the theory of quantum meruit, the plaintiff must prove that: (1) she

performed a service to benefit the defendant, (2) she did not perform this service gratuitously, (3)

defendant accepted this service, and (4) no contract existed to prescribe payment for this service.

Canel & Hale, Ltd. v. Tobin,

,

(1999).

¶ 15 When Brewer prepared to file a counterclaim containing these allegations and claims,

Blumenthal filed a legal memorandum indicating that that Illinois public policy, as stated in

Hewitt, does not allow for implied contract claims based on nonmarital cohabitation. Hewitt,

,

. Blumenthal further argued that even if Illinois recognized claims between

unmarried domestic partners, Brewer's allegations were factually deficient. After further briefing

and oral arguments, the trial judge granted Brewer leave to file her proposed amended

counterclaim, treated Blumenthal's memo as a section 2-615 motion to dismiss Brewer's pleading

(735 ILCS 5/2-615 (West 2010)), and entered the dismissal ruling now on appeal. The judge's

8 No. 1-13-2250

written order states, "this Court considers itself compelled to enter this [dismissal] order because

of [Hewitt]." There is no indication in the order or the parties' appellate briefs that the trial judge

considered Blumenthal's arguments that the pleading was factually deficient. The order, however,

includes language allowing for immediate appeal pursuant to Supreme Court Rule 304(a), and

after the judge denied Brewer's amended motion for reconsideration of the dismissal, Brewer filed

this appeal. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).

¶ 16 Brewer now argues that the trial court's reliance on the 35-year-old Hewitt opinion was

misplaced because the legislative policies underlying that decision either no longer exist or have

been modified substantially. Hewitt,

,

. She contends it was public

policy to treat unmarried relationships as illicit, but in the decades since Hewitt was decided, the

Illinois legislature has repealed the criminal prohibition on nonmarital cohabitation, prohibited

differential treatment of marital and nonmarital children, adopted no-fault divorce, established

civil unions for both opposite-sex and same-sex partners, and extended other significant

protections to nonmarital families. Brewer contends that in light of these profound changes,

Hewitt's categorical restriction on claims by unmarried partners has been implicitly overruled. She

concludes that Hewitt's holding has no basis in the current law and that its continued application

would directly contravene the current policy of this state.

¶ 17 Blumenthal responds that Hewitt was not based on a legislative policy to stigmatize or

penalize cohabitants for their relationship, but was instead based on a statute that abolished

common law marriage in this jurisdiction and is now known as section 214 of the Illinois Marriage

and Dissolution of Marriage Act (750 ILCS 5/214 (West 2010) ("Common law marriages

9 No. 1-13-2250

contracted in this State after June 30, 1905 are invalid.")). Blumenthal contends that regardless of

the many legislative changes that Brewer has highlighted and discussed so thoroughly in her

appellate brief, the Illinois legislature has never changed its categorical abolition of common law

marriage. Blumenthal contends that Hewitt is still good law because it gives effect to Illinois'

ongoing public policy that individuals acting privately by themselves cannot create a marriage

relationship and that the government must be involved in the creation of that bond. Blumenthal

concludes that conferring the benefits of a legal marriage on her relationship with Brewer would

essentially be resurrecting common law marriage in Illinois and overruling Hewitt and subsequent

cases that note that change, if any, must come from the legislature.

¶ 18 We find some merit in both parties' arguments. We agree with Brewer that Hewitt is based

on public policy considerations and we agree with Blumenthal that Hewitt gives effect to the

legislature's ban on common law marriage. Nevertheless, for the following reasons, we find that

the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer's suit is not

an attempt to retroactively create a marriage, and that allowing her to proceed with her claims

against her former domestic partner does not conflict with this jurisdiction's abolishment of

common law marriage.

¶ 19 In Hewitt, Victoria Hewitt initially filed a complaint to divorce Robert Hewitt, but then

acknowledged that the parties never took out a marriage license or took part in a marriage

ceremony. Hewitt,

,

. Her amended complaint or the parties'

testimony indicated that after Robert and Victoria conceived a baby while they were college

students in 1960, Robert told Victoria they would share their assets and were husband and wife

10 No. 1-13-2250

without need of a formal ceremony, they immediately announced to their parents they were

married, and for the next 15 years they held themselves out as a married couple. Hewitt,

,

. During those years, they had two more children and coordinated their

efforts and assets as if they were married, including investing in the success of the "husband's"

dental schooling and practice. Hewitt,

,

. After her complaint for

divorce was dismissed, Victoria refiled. Hewitt,

,

. She

claimed an equal share of the property and profits she accumulated with Robert, based on breach of

his express promise that they would share their assets without need of a formal ceremony, implied

contract, fraud on his part, and detrimental reliance on her part. Hewitt,

,

. The trial court dismissed Victoria's suit because there was no marriage, but the appellate

court reversed, holding that because the relationship was outwardly a conventional marriage,

Victoria should be allowed to recover from Robert. Hewitt,

,

. In

reinstating the trial judge's dismissal, the Supreme Court of Illinois wrote, "We do not intend to

suggest that plaintiff’s claims are totally devoid of merit" (Hewitt,

,

), but the court questioned whether allowing recovery to a woman who chose "to enter into

what have heretofore been commonly referred to as 'illicit' or 'meretricious' relationships," would

"encourage formation of such relationships and weaken marriage as the foundation of our

family-based society" (Hewitt,

,

). The court left the parties

where they were because the issues implicated this jurisdiction's public policy:

"We are aware, of course, of the increasing judicial attention given the individual

claims of unmarried cohabitants to jointly accumulated property, and the fact that

11 No. 1-13-2250

the majority of courts considering the question have recognized an equitable or

contractual basis for implementing the reasonable expectations of the parties unless

sexual services were the explicit consideration. [Citation.] *** Of substantially

greater importance than the rights of the immediate parties is the impact of such

recognition upon our society and the institution of marriage. ***

***

*** The issue, realistically, is whether it is appropriate for this court to grant

a legal status to a private arrangement substituting for the institution of marriage

sanctioned by the State. The question whether change is needed in the law

governing the rights of parties in this delicate area of marriage-like relationships

involves evaluations of sociological data and alternatives we believe best suited to

the superior investigative and fact-finding facilities of the legislative branch in the

exercise of its traditional authority to declare public policy in the domestic relations

field. [Citations.] That belief is reinforced by the fact that judicial recognition of

mutual property rights between unmarried cohabitants would, in our opinion,

clearly violate the [statutory ban on common law marriage]." Hewitt,

,

.

¶ 20 Thus, Brewer is correct when she argues that the court believed that allowing Victoria to

recover from Robert would have contravened public policy and Blumenthal is correct that the

court wanted to steer clear of sanctioning a common law marriage.

¶ 21 Hewitt's reasoning was subsequently applied in Ayala, in which the court rejected a

12 No. 1-13-2250

woman's claim for an equitable interest in a home in Warrenville, Illinois, which she and her

boyfriend had constructed and resided in for 10 years. Ayala v. Fox,

,

(1990). The woman alleged the couple " 'lived together as husband and wife' " (Ayala,

,

), but, citing Hewitt, the court declined to award her an

interest in the " 'marital' residence" because doing so was contrary to the public policy expressed

by the Illinois legislature to strengthen and preserve marriage. Ayala,

,

(citing Hewitt,

,

). Hewitt's rationale was also

pivotal in Costa–a case in which the typical roles were reversed–with a man suing a woman with

whom he had lived for 24 years in a " 'quasi-marital' relationship, with 'all the indicia of a marital

type relationship, including love, trust, mutual responsibilities and intimacy.' " Costa v. Oliven,

,

(2006). The woman built a successful business

while the man stayed home to raise and home-school their child. Costa,

,

. He alleged that during their years together, she took sole title to almost every

asset and possession that was acquired through the couple's joint efforts and labor. Costa,

,

. He argued that dismissing his complaint for failure to state a

cause led to harsh and unjust results, but the appellate court affirmed the dismissal, stressing that

until the legislature made changes, this type of complaint would continue to fail. Costa,

,

.

¶ 22 Brewer, however, has identified numerous changes in Illinois law which indicate that

public policy has shifted dramatically in the ensuing 35 years and that ongoing application of

Hewit is no longer justified.

13 No. 1-13-2250

¶ 23 Hewitt relied on Illinois' former policy of discouraging cohabitation between unmarried

parties and disfavoring nonmarital children. The court referred to the "traditional" rule in effect in

"all jurisdictions" that enforcing property rights between former cohabitants amounts to enforcing

a bargain in which all or part of the consideration has been illicit sexual intercourse. Hewitt, 79 Ill.

2d at 59,

. Since Hewitt was decided, however, Illinois' public policies toward

nonmarital relationships and nonmarital children have significantly changed.

¶ 24 When Hewitt was decided in 1979, Illinois criminalized cohabitation and the Illinois

Supreme Court affirmed a trial judge's decision to transfer custody of three children to their father

because their mother was openly living with her boyfriend. See Ill. Rev. Stat. 1961, ch. 38, ¶11-8

(a "person who cohabits *** commits fornification if the behavior is open and notorious") (now

720 ILCS 5/11-40 (West 2010)); Jarrett v. Jarrett,

,

(1980)

(holding that a mother's cohabitation with her boyfriend with no plans to marry was an affront to

morality, injurious to the moral well-being and development of her children, and sufficient

grounds for changing custody). The change in custody was granted despite the fact that Illinois

places great emphasis on stability and continuity in custody arrangements. In re Marriage of

Wycoff,

,

(1994) (indicating there is a presumption

in favor of the existing custodial parent and that a custody arrangement should not be "lightly

overturned"). A year prior, a mother who committed the same "moral indiscretion" of living with

her boyfriend was allowed to retain custody of her children because she and the boyfriend said

they intended to marry as soon as her second divorce became final. Rippon v. Rippon,

,

(1978). This was "a normal life" for the children. Rippon,

No. 1-13-2250

468,

.

¶ 25 By 1983, however, the Illinois Supreme Court acknowledged that a parent's cohabitation

was not inherently harmful to a child and should not be used to deny custody. In re Marriage of

Thompson,

,

(1983) (stating there was no conclusive

presumption in Illinois that when a custodial parent cohabitates, the child is harmed). And, in

1990, the Illinois legislature repealed the language that criminalized cohabitation. See Pub. Act

86-490 (eff. Jan. 1, 1990) (deleting "cohabits" from criminal code). After the statute was changed,

the primary basis for the result in Hewitt–that agreements between unmarried parties are not

enforceable because their relationship is illicit–ceased to exist.

¶ 26 Shortly after that, the courts addressed a custody challenge based on same-sex

cohabitation. A father disapproved of the mother's openness to their two children about her

same-sex relationship and argued that she should have concealed it from them, instead of

answering her daughter's questions while her son was present. In re Marriage of R.S.,

,

(1996). The father could not, however, point to any

negative consequences (In re Marriage of R.S.,

,

) and

the evidence showed that the children were thriving in their mother's care (In re Marriage of R.S.,

,

). The appellate court found that it was error to change

custody on the basis of a parent's conduct which had no impact on her children. In re Marriage of

R.S.,

,

. The appellate court returned sole custody to her.

In re Marriage of R.S.,

,

.

¶ 27 Hewitt also relied on policies that disfavored nonmarital children, due to concerns about

15 No. 1-13-2250

inheritance rights, custody questions, and the "sociological and psychological effects" of children

being in "that type of environment." Hewitt,

,

. Illinois has since

repealed its policies denying recognition and protection to children born to unmarried parents. For

instance, Hewitt's statement that contracts between unmarried couples are presumptively

unenforceable and illegal was based in part on, Wallace, an 1882 case in which an agreement

between an unmarried father and mother to make their daughter his heir was held void as a verbal

agreement in consideration of future illicit cohabitation. Wallace v. Rappleye,

(1882). Today, however, the Illinois Parentage Act of 1984 specifically provides that "[t]he parent

and child relationship, including support obligations, extends equally to every child and to every

parent, regardless of the marital status of the parents." 750 ILCS 45/3 (West 2012) (created in 1984

by Public Act 83-1372 (eff. July 1, 1985)). There has also been an amendment to the Illinois

Probate Act of 1975 extending intestate inheritance rights to children of unmarried parents (see

755 ILCS 5/2-2 (West 2012) (amended in 1978 by Public Act 80-1429, § 1 (eff. Sept. 12, 1978)))

and a similar amendment to the Illinois Pension Code indicates that children born to unmarried

parents are entitled to the same survivor's benefits as other children (see 40 ILCS 5/1-104.2 (West

2012) (created in 1985 by Public Act 84-1028, § 1 (eff. Nov. 18, 1985))).

¶ 28 Hewitt's discussion of the "traditional" rule that courts do not recognize property claims

between unmarried couples was based in part on section 589 of the first version of the Restatement

of Contracts. Hewitt,

,

-08 (quoting Restatement of Contracts

§ 589 (1932)). In 1981, the Restatement of Contracts was updated for the first time in 50 years. The

current version of the legal treatise deleted section 589 and in doing so ceased to define all

16 No. 1-13-2250

bargains between people in intimate relationships as illegal contracts. Restatement (Second) of

Contracts (1981).

¶ 29 Hewitt was also premised on a section of Corbin on Contracts which has been abandoned.

Hewitt,

,

(citing 6A Arthur L. Corbin, Contracts § 1476 (1962)).

That section, entitled "Bargains in Furtherance of Immorality," gave the example of lending

money or supplying goods to a brothel, which is hardly the type of conduct that Brewer alleged in

her claims against Blumenthal. 6A Arthur L. Corbin, Contracts § 1476, 623 (1962).

¶ 30 Furthermore, the current version of Corbin on Contracts recognizes that a cohabitating

couple is a family and remarks, "The courts' treatment of contracts entered into by cohabitating

parties evolved in the last part of the twentieth century and is clear evidence of how the courts'

view of what might be against public policy varies with changes in society's views." 15 Grace

McLane Giesel, Corbin on Contracts § 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). The author

of the treatise explains: "It is no coincidence that courts have become more receptive to enforcing

contracts between cohabitating parties in an age in which a significant number of male and female

couples as well as same gender couples cohabit. The shift in judicial treatment, while significant in

effect, is subtle in terms of analytical differences." 15 Grace McLane Giesel, Corbin on Contracts

§ 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). Courts reasoned that they were furthering the

public policies of (1) protecting and encouraging marriage and (2) discouraging any exchange of

sexual activity for value. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 207 (Joseph M.

Perillo ed., rev. ed. 2003). Those public policies are still in effect, but United States courts no

longer perceive a conflict between furthering those policies and enforcing agreements between

17 No. 1-13-2250

former cohabitants. United States courts are increasingly inclined to enforce agreements between

former cohabitants. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 207-08 (Joseph M.

Perillo ed., rev. ed. 2003). Corbin on Contracts identifies the California Supreme Court's opinion

in Marvin v. Marvin,

(Cal. 1976), as the "case that seems to have turned the tide of

judicial treatment." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 213 (Joseph M. Perillo

ed., rev. ed. 2003).

¶ 31 In Marvin, the parties cohabited for seven years and she sought, by way of a contract

action, to enforce his oral promise that they would share earnings and property for life. The court

stated that this type of agreement "even if expressly made in contemplation of a common living

arrangement" is invalid only if sexual acts form an inseparable part of the consideration for the

agreement." Marvin,

. Instead, "any severable portion of the contract supported by

independent consideration will still be enforced." Marvin,

. In other words, in

reversing a judgment on the pleadings in his favor, the court concluded that nonmarital cohabitants

should be treated “as any other persons,” and that contracts between them are valid and

enforceable so long as they are not solely and exclusively based on sexual services, i.e.,

prostitution. Marvin,

. The court emphasized that the institution of marriage is

important and worthy of protection, but, nonetheless, Marvin "disconnected the link prior courts

had perceived between cohabitation agreements and a public policy against sexual relations for

value, stating that to 'equate the nonmarital relationship of today to [prostitution] . . . is to do

violence to an accepted and totally different practice.' " 15 Grace McLane Giesel, Corbin on

Contracts § 81.4, 213-14 (Joseph M. Perillo ed., rev. ed. 2003) (quoting Marvin,

).

18 No. 1-13-2250

Thus, Marvin established the limited principle that cohabitation in itself is not illicit or

meretricious and that the "judicial barriers that may stand in the way of a policy based upon the

fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be

removed." Marvin, 57 P.2d at 122. Therefore, according to Corbin on Contracts, the majority of

"modern" courts now enforce claims between former cohabitants. 15 Grace McLane Giesel,

Corbin on Contracts § 81.4, 217 (Joseph M. Perillo ed., rev. ed. 2003).

"Whereas cases decided [prior to] Marvin may have presumed that the

sexual relationship was the substance of the agreement, cases after Marvin seem to

presume that the relationship is not the substance of the agreement. These cases are

not concerned that the agreement exists in the context of a sexual relationship, but

rather are concerned only if the contract's 'primary' reason is sexual relations for

value." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 219 (Joseph M.

Perillo ed., rev. ed. 2003).

¶ 32 It is also worth noting that Hewitt may have had unintended consequences. The court

acknowledged its intention to enforce legislative policies that intentionally penalized unmarried

couples and their children as a means of discouraging cohabitation and encouraging marriage.

Hewitt,

,

(expressing concern that allowing unmarried partners

to adjudicate mutual property disputes would "encourage formation of such relationships and

weaken marriage as the foundation of our family-based society," and stating that "[o]f

substantially greater importance than the rights of the immediate parties is the impact of such

recognition upon our society and the institution of marriage"). The ruling, however, may have the

19 No. 1-13-2250

contrary effect–refusing to hear claims between unmarried cohabitants creates an incentive for

some to not marry. A cohabitant who by happenstance or design takes possession or title to

jointly-acquired assets is able to retain them without consequence when their "financially

vulnerable" counterpart is turned away by the courts. Candace Saari Kovacic-Fleischer,

Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,

, 1424 (2011) (pointing out that denying remedies because there has been unmarried

cohabitation punishes only one of the two cohabitants and enriches the other). "Such an unequal

outcome itself might weaken rather than strengthen the institution of marriage because it creates an

incentive for the more financially savvy partner to opt out of marriage." Candace Saari

Kovacic-Fleischer, Cohabitation and the Restatement (Third) of Restitution and Unjust

Enrichment,

, 1424 (2011).

" '[T]his court and the courts of other jurisdictions have, in effect, sometimes said,

'We will wash our hands of such disputes. The parties should and must be left to

their own devices, just where they find themselves.' *** [S]uch pronouncements

seem overly fastidious and a bit fatuous. They are unrealistic and, among other

things, ignore the fact that an unannounced (but nevertheless effective and binding)

rule of law is inherent in any such terminal statements by a court of law. The

unannounced but inherent rule is simply that the party who has title, or in some

instances who is in possession, will enjoy the rights of ownership of the property

concerned. The rule often operates to the great advantage of the cunning and the

shrewd, who wind up with possession of the property, or title to it in their names, at

20 No. 1-13-2250

the end of a [so-called] meretricious relationship. So, although the courts proclaim

that they will have nothing to do with such matters, the proclamation in itself

establishes, as to the parties involved, an effective and binding rule of law which

tends to operate purely by accident or perhaps by reason of the cunning,

anticipatory designs of just one of the parties.” West v. Knowles,

(Wash. 1957) (Finley, J., specially concurring).

¶ 33 Also essential to Hewitt's holding was the court's conclusion that the legislature's then-

recent decision to "retain[] fault grounds for dissolution of marriage" reflected a public policy to

"prevent[] the marriage relation from becoming in effect a private contract terminable at will."

Hewitt,

,

. The court construed this as "another indication that

public policy disfavors private contractual alternatives to marriage." Hewitt,

,

. The court remarked that California's ruling in Marvin was "facilitated" in part by

California's no-fault divorce law. Hewitt,

,

. At the time, Illinois

was one of only three states retaining fault grounds for the dissolution of marriage. Hewitt,

,

. Five years later, however, the Illinois legislature adopted no-fault

divorce, allowing either spouse to terminate a marriage due to "irreconcilable differences." 750

ILCS 5/401(a)(2) (

) (created by Public Act 83-954 (eff. July 1, 1984)). As the court

recognized in Karbin, the legislature's adoption of no-fault divorce was a significant change in

Illinois public policy and gave individuals the freedom and dignity to choose whether to end their

marriages, instead of restricting divorce only to situations where "the court would assign blame or

fault to a specific spouse." Karbin v. Karbin,

,

(holding that

21 No. 1-13-2250

common law preventing plenary guardian from bringing divorce action on behalf of mentally

disabled ward had been abrogated by subsequent legislation and rulings). Furthermore, although

Illinois has a long history of enforcing premarital agreements (see, e.g., Seuss v. Schukat,

(1934) (enforcing premarital agreement executed in 1912 providing for wife to retain her

real estate despite her impending marriage)), the legislature's codification of the Uniform

Premarital Agreement Act in 1990 is a contemporary indication that the Illinois legislature sees no

conflict between recognizing private contractual agreements and furthering the state's interest in

supporting and strengthening marriage. See 750 ILCS 10/1 et seq. (

); In re Marriage of

Barnes,

,

(2001) (indicating that historically,

premarital agreements that limited spousal maintenance or distributed property upon divorce were

invalidated on public policy grounds because they were said to be conducive to divorce, but it is

"now clear that there is no longer any general public policy opposed to agreements contemplating

divorce"). In short, the enactment of statutes providing for nofault divorce and the enforcement of

prenuptial agreements have resolved Hewitt's concern that recognizing property rights between

unmarried cohabitants would somehow contravene the public policy of strengthening and

preserving the institution of marriage.

¶ 34 We have also considered that the Illinois legislature enacted the Illinois Religious Freedom

Protection and Civil Union Act, which provides for unmarried couples to enter into Illinois civil

unions and receive all the rights and burdens available to married couples in this jurisdiction. 750

ILCS 75/1 et seq. (

). In addition, same-sex couples are now able to marry in Illinois as

of June 1, 2014. Public Act 98-597, § 1 (eff. June 1, 2014) (adding 750 ILCS 80/1 et seq.). The

22 No. 1-13-2250

express purpose of the new Religious Freedom and Marriage Fairness Act is "to provide same-sex

and different-sex couples and their children equal access to the status, benefits, protections, rights

and responsibilities of civil marriage." Public Act 98-597, § 1 ( eff. June 1, 2014) (adding 750

ILCS 80/10). Illinois also now recognizes the rights of unmarried couples (and individuals) to

adopt children. 750 ILCS 50/2 (

). And, many of Illinois' public and private employers

are treating cohabitating domestic partners as family members and extend insurance benefits to

both partners. See Proposed Resolution Amendment to the Cook County Employee Domestic

Partnership Benefits Resolution, Report of the Committee on Human Relations, Board of

Commissioners of Cook County, June 24, 2008 (stating "many private companies, including

approximately 500 Fortune 1000 companies, and many units of local government, as well as

numerous colleges and universities, provide health insurance and other benefits to [their]

Employees for their domestic partners"). Also, since Hewitt was decided, the courts have held that

unmarried private sexual relationships, whether they be opposite-sex or same-sex relationships,

are a form of intimate conduct that are protected by the federal constitution. Lawrence v. Texas,

(2003) (holding that regardless of whether the participants are married, a private

homosexual relationship is a form of intimate human conduct that is protected as a liberty interest

against unreasonable public interference); Christensen v. County of Boone, Illinois,

(7th Cir. 2007) (holding that an unmarried heterosexual couple in a long-term relationship was

entitled to the same constitutional protection as the homosexual couple in Lawrence); Roberts v.

United States Jaycees,

(1984) (analyzing the right of individuals to engage in

intimate associations, the first type of association being for the purpose of engaging in expression

23 No. 1-13-2250

protected by the first amendment, and the second type being certain intimate human relationships

which enable persons to independently define their identity, an ability that is central to liberty);

Lehr v. Robertson,

(1983) ("the relationship of love and duty in a recognized

family unit is an interest in liberty entitled to constitutional protection"). In other words, Illinois

now respects and supports the relationships that Hewitt labeled as illicit or immoral.

¶ 35 We acknowledge Hewitt's statement that it is the legislature's role to declare public policy

in the domestic relations field. Hewitt,

,

. After having reviewed

the legislation that was enacted during the years that Brewer and Blumenthal were together,

buying a house, having children, dividing up their domestic responsibilities and pursuing their

legal and medical careers, we conclude that although Brewer and Blumenthal were not legally

entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation

or Brewer's claims against Blumenthal. Furthermore, Brewer did not allege an agreement with

Blumenthal based on illicit consideration of sex, which was the primary historical rationale for

rejecting cohabitation agreements. Instead, Brewer, who never had the option of marrying

Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets

based on a mutual commitment and expectation of a lifelong relationship, that they divided their

domestic and work responsibilities to best provide for the three children they had together, and that

neither partner intended for their decisions and family roles to leave Brewer at a financial

disadvantage later in life.

¶ 36 The important changes in Illinois law are consistent with changes in other jurisdictions.

Based on its survey of modern authority, in 2011, the Restatement (Third) of Restitution and

24 No. 1-13-2250

Unjust Enrichment added a new section that specifically allows former cohabitants to bring claims

against each other to "prevent unjust enrichment upon the dissolution of the relationship."

Restatement (Third) of Restitution and Unjust Enrichment § 28 (2011). That new section provides:

"If two persons have formerly lived together in a relationship resembling marriage,

and if one of them owns a specific asset to which the other has made substantial,

uncompensated contributions in the form of property or services, the person

making such contributions has a claim in restitution against the owner as necessary

to prevent unjust enrichment upon the dissolution of the relationship." Restatement

(Third) of Restitution and Unjust Enrichment § 28 (2011).

¶ 37 Brewer points out that today, nearly every state permits unmarried partners to bring

common law claims to resolve their property disputes, even though these same jurisdictions do not

permit common law marriage. See, e.g., Wood v. Collins,

(Alaska 1991); Cook v.

Cook,

(Ariz. 1984); Bramlett v. Selman,

(Ark. 1980); Marvin v.

Marvin,

(Cal. 1976); Boland v. Catalano,

(Conn. 1987); Mason v.

Rostad,

(D.C. 1984); Poe v. Estate of Levy,

(Fla. Dist. Ct. App.

1982); Simmons v. Samulewicz,

(Haw. Ct. App. 2013); Glasgo v. Glasgo,

(Ind. Ct. App. 1980); Akers v. Stamper,

(Ky. Ct. App. 1967);

Donovan v. Scuderi,

(Md. Ct. Spec. App. 1982). 2 Accordingly, we see no conflict

2 Common law marriage in the United States still occurs only in the District of Columbia and ten

states: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island,

South Carolina, and Texas. See National Conference of State Legislatures, Common Law

25 No. 1-13-2250

between our conclusions about Brewer's claims against her former domestic partner and Illinois'

ban on common law marriage.

¶ 38 Blumenthal has contended that Brewer is attempting to retroactively redefine what the

parties' relationship was in order to claim the benefits of a legal marriage, much like the petitioner

did in In re Estate of Hall,

,

(1998). We disagree. In that

probate case, the petitioner, who was never married to her same-sex life partner, sought to be

recognized as the "surviving spouse" within the meaning of a section of the Probate Act that

entitles surviving spouses to a share of the decedent's estate. Estate of Hall,

,

(quoting 755 ILCS 5/2-1(a) (

)). Brewer, however, is not bringing a

statutory claim or asking the court to give her a new legal status or descriptive title. Brewer wants

only to bring common law claims that are available to other people. We find that Brewer has the

right to do so and that the trial court's dismissal of her claims was in error.

¶ 39 In light of this conclusion, we do not need to reach appellant Brewer's alternative

contentions that preventing unmarried domestic partners from pursuing common law claims

available to all other persons, solely because they had or have an intimate relationship, violates the

Illinois and federal constitutional guarantees of due process and equal protection of the laws. See

U.S. Const. amend XIV § 1; Ill. Const. 1970, art I. §§ 2, 12.

¶ 40 Finally, Blumenthal contends that even absent Hewitt, Brewer's counterclaims do not

factually state the elements necessary for any claims of implied contractual relief. Blumenthal

Marriage by State, http://www.ncsl.org/research/human-services/common-law-marriage.aspx

(last visited Dec. 16, 2014).

26 No. 1-13-2250

made this argument in the trial court, but the judge did not resolve it. This was error. Accordingly,

we vacate the dismissal that was based on Hewitt and remand with directions to consider the

parties' remaining arguments. We have not considered those arguments and have no opinion about

them.

¶ 41 Vacated and remanded with directions.

27