Blumenthal v. Brewer

2016 IL 118781

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118781)

JANE E. BLUMENTHAL, Appellant, v. EILEEN M. BREWER, Appellee.

Opinion filed August 18, 2016.

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in

the judgment and opinion.

Justice Theis concurred in part and dissented in part, with opinion, joined by

Justice Burke.

OPINION

¶1 In this case we are called upon to consider the continued viability and

applicability of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held

that Illinois public policy, as set forth in this State’s statutory prohibition against

common-law marriage, precludes unmarried cohabitants from bringing claims

against one another to enforce mutual property rights where the rights asserted are

rooted in a marriage-like relationship between the parties.

¶2 The issue has arisen here in the context of an action brought by Dr. Jane E.

Blumenthal for partition of the family home she shared and jointly owned with

Judge Eileen M. Brewer. The couple had maintained a long-term, domestic

relationship and raised a family together but had never married. Blumenthal sought

partition of the residence when the relationship ended and she moved out.

¶3 The partition action itself presented no question under Hewitt. The problem

arose when Brewer counterclaimed for various common-law remedies, including

sole title to the home as well as an interest in Blumenthal’s ownership share in a

medical group so that the couple’s overall assets would be equalized now that the

couple had ended their relationship. Blumenthal moved to dismiss, asserting that

the various counts of the counterclaim should fail as a matter of law under Hewitt,

which rejected a woman’s suit to divide assets she accumulated with a man during a

long-term relationship in which they lived together, had three children together, but

never married. The circuit court agreed, and the counterclaim was dismissed in full.

¶4 The underlying partition action between Blumenthal and Brewer proceeded to

final judgment. No appeal was or has been taken from that judgment. While the

partition proceeding was following its course, however, Brewer pursued an appeal

of the dismissal of her counterclaim pursuant to Illinois Supreme Court Rule 304(a)

(eff. Mar. 8, 2016), arguing that Hewitt should be rejected and should not bar any of

the relief she sought.

¶5 The appellate court agreed with Brewer’s position. It rebuffed Hewitt’s holding

as outmoded and ill-considered, undertook its own public policy analysis, and held

that the public policy of prohibiting unmarried domestic partners from bringing

common-law claims against one another no longer exists in current law.

Accordingly, it vacated the circuit court’s dismissal of Brewer’s counterclaim and

remanded the matter to the circuit court to consider additional arguments raised by

the parties. 2014 IL App (1st) 132250, ¶ 40.

¶6 This court allowed Blumenthal’s petition for leave to appeal. Ill. S. Ct. R. 315

(eff. July 1, 2013). We also granted the American Civil Liberties Union of Illinois

and Lambda Legal Defense and Education Fund, Inc., leave to file a friend of the

court brief in support of Brewer. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the

reasons that follow, we now vacate in part and reverse in part the judgment of the

appellate court and affirm the judgment of the circuit court.

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¶7 BACKGROUND

¶8 This litigation began in 2010 when Blumenthal filed her verified complaint for

partition pursuant to section 17-101 of the Code of Civil Procedure (735 ILCS

5/17-101 et seq. (West 2012)) in the circuit court of Cook County. The portion of

the partition action relevant here was directed at the parties’ South Kimbark

residence (hereinafter sometimes referred to as the Chicago home), which

Blumenthal jointly owned with Brewer, who had been her domestic partner since

approximately 1981. Blumenthal’s complaint requested that “a fair division and

partition of [the] property be made between the parties *** according to their

respective rights and interests.” The complaint further requested, in the alternative,

that if the property could not be divided without manifest injustice to the parties in

interest, then it should be sold by or under direction of the court, with the proceeds

of the sale to be divided among the parties “according to their respective rights or

interests in such proceeds as ascertained and declared” by the court.

¶9 Brewer’s counterclaim, which is the focus of this appeal, was premised on the

couple’s domestic relationship, which Brewer characterized as “identical in every

essential way to that of a married couple.” As finally amended, the counterclaim

contained five counts. Counts I, II, IV, and V all pertained directly to the

disposition of the parties’ home in the underlying partition action. Specifically,

they sought to guide the court with respect to how the party’s respective rights and

interests in that property should be ascertained and valued and how the property

should be divided. Count I sought imposition of a constructive trust based on unjust

enrichment. Court II argued that the house should be divided based on principles of

equitable division. Count IV asserted that in allocating the value of the house, the

court should factor in amounts expended by Brewer to maintain it after a certain

date. Invoking principles of quantum meruit, count V claimed that apportionment

of the home’s value should take into account the value of Brewer’s time in making

sure the property was adequately secured, maintained, and repaired. Count III

sought a constructive trust over the annual net earnings or the sale of Blumenthal’s

share of her medical practice, or in the alternative, restitution of funds that

Blumenthal used from the couple’s joint account to purchase the medical practice.

¶ 10 In the circuit court, Blumenthal successfully argued that all counts of Brewer’s

counterclaim were barred as a matter of law by this court’s decision in Hewitt v.

Hewitt, 77 Ill. 2d 49 (1979). As noted earlier, Hewitt held that Illinois public policy,

as set forth in this state’s statutory prohibition against common-law marriage,

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precludes knowingly unmarried cohabitants from bringing claims against one

another to enforce mutual property rights where those rights are rooted in a

marriage-like relationship between the parties.

¶ 11 On appeal to the appellate court, Brewer contended that dramatic shifts in

public policy had rendered this court’s decision in Hewitt obsolete and that Hewitt

no longer represented an accurate view of how Illinois law should treat such a claim

today. Brewer contended that at the time Hewitt was decided, it was public policy

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

Illinois legislature had 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. Thus, Brewer maintained that in light of these profound changes, Hewitt’s

restriction on common-law claims being brought by unmarried partners has been

implicitly overruled and that continued application of Hewitt would directly

contravene the current policy of this state.

¶ 12 Blumenthal responded 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 (Marriage

and Dissolution Act) (750 ILCS 5/214 (West 2010) (“Common law marriages

contracted in this State after June 30, 1905 are invalid.”)). Blumenthal contended

that Hewitt remains good law because it gives effect to Illinois’s 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.

In Blumenthal’s view, reversing the circuit court’s dismissal order would require

the appellate court to overrule Hewitt and its progeny, something it had no authority

to do, and, in effect, resurrect common-law marriage in Illinois.

¶ 13 In a detailed discussion, the appellate court found some merit in both parties’

arguments, but ultimately agreed with Brewer’s claims finding that the primary

basis for the result in Hewitt “ceased to exist.” 2014 IL App (1st) 132250, ¶¶ 18, 25.

To support its claim that Hewitt is now obsolete, the appellate court adopted

Brewer’s list of post-Hewitt policy changes and laws that relate to property rights of

married or unmarried couples. Id. ¶¶ 30, 33-34. In particular, the appellate court

gave considerable weight to the fact that in the decades since Hewitt was decided,

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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. Id. ¶¶ 23-27, 33-34.

¶ 14 The appellate court also disagreed with the policy finding in Hewitt, arguing

that Hewitt “may have the contrary effect [of discouraging cohabitation and

encouraging marriage because] refusing to hear claims between unmarried

cohabitants creates an incentive for some to not marry.” Id. ¶ 32. Thus, the

appellate court believed that “[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.” Id.

¶ 15 Finding that Hewitt’s common-law ban was misplaced, the appellate court

determined that Brewer’s counterclaim was not an attempt to retroactively redefine

the parties’ relation in order to claim the benefits of a legal marriage, but rather a

claim to have similar common-law property rights as others that were not in a

cohabiting, unmarried relationship. Id. ¶ 38. Accordingly, the appellate court

vacated the circuit court’s Hewitt-based dismissal of the counterclaim and

remanded the matter to the circuit court to consider additional arguments raised by

the parties. Id. ¶ 40.

¶ 16 We will discuss the remaining relevant facts of this case within our discussion.

¶ 17 ANALYSIS

¶ 18 Blumenthal’s central argument on this appeal is that the circuit court’s order

dismissing Brewer’s counterclaim was proper and should not have been disturbed

because it was mandated by this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49

(1979), and the prohibition against common-law marriage set forth in section 214

of the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)). Blumenthal

asserts that in reversing the circuit court and remanding for further proceedings, the

appellate court misread Hewitt, improperly reinstated common-law marriage in

contravention of Illinois law, and usurped public policy determinations that

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properly belong to the legislature. Blumenthal also criticizes the appellate court’s

decision for improperly extending principles of unjust enrichment.

¶ 19 In undertaking our review, we begin by noting that the circuit court’s rejection

of Brewer’s counterclaim was made in the context of a motion to dismiss under

section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).

Such motions challenge the legal sufficiency of a pleading based on defects

apparent on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13.

In ruling on a section 2-615 motion, a court must accept as true all well-pleaded

facts and all reasonable inferences that may be drawn from those facts. Beacham v.

Walker, 231 Ill. 2d 51, 57-58 (2008). It is well understood that the critical inquiry is

whether the allegations of the complaint, when construed in the light most

favorable to the plaintiff, are sufficient to establish a cause of action upon which

relief may be granted. Such orders granting motions to dismiss under section 2-615

are reviewed de novo. Bonhomme v. St. James, 2012 IL 112393, ¶ 34.

¶ 20 Counterclaim Counts I, II, IV, and V

¶ 21 As a preliminary matter, Blumenthal contends the issue of whether counts I, II,

IV, and V of Brewer’s counterclaim are viable under Hewitt should not have been

addressed by the appellate court and is not properly before us. We agree. As to

those four counts, the appellate court’s judgment is fatally flawed for two

fundamental reasons unrelated to Hewitt.

¶ 22 First, the appellate court lacked jurisdiction to entertain the appeal from

dismissal of those counts. The Illinois Constitution confers on the appellate court

jurisdiction to hear appeals from all final judgments entered in the circuit court. See

Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a

Circuit Court are a matter of right to the Appellate Court”). The constitution also

grants this court the right to “provide by rule for appeals to the Appellate Court

from other than final judgments.” Id. Accordingly, absent a supreme court rule, the

appellate court is without jurisdiction to review judgments, orders, or decrees that

are not final. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9.

¶ 23 The ruling at issue here was brought before the appellate court based on Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010), which authorizes appeals from

final judgments that do not dispose of an entire proceeding “if the trial court has

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made an express written finding that there is no just reason for delaying either

enforcement or appeal or both.” An order or judgment is considered to be final and

appealable for purposes of this rule if it terminates the litigation between the parties

on the merits or disposes of the rights of the parties, either on the entire controversy

or a separate part thereof. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008).

The purpose of the rule is “ ‘to discourage piecemeal appeals in the absence of a

just reason and to remove the uncertainty which existed when a final judgment was

entered on fewer than all of the matters in controversy.’ ” Id. (quoting Marsh v.

Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990)).

¶ 24 Although the circuit court in this case made the written finding required by Rule

304(a), that finding is not dispositive. By its terms, Rule 304(a) applies only to final

judgments or orders. The special finding contemplated by the rule will make a final

order appealable, but it can have no effect on a nonfinal order. Kellerman v. Crowe,

119 Ill. 2d 111, 115 (1987). If the order is in fact not final, inclusion of the special

finding in the trial court’s order cannot confer appellate jurisdiction. EMC

Mortgage Corp., 2012 IL 113419, ¶ 14.

¶ 25 The circuit court’s action dismissing counts I, II, IV, and V of Brewer’s

counterclaim did not qualify as a final judgment or order. As mentioned above, to

be considered final and appealable for purposes of Rule 304(a), a judgment or order

must terminate the litigation between the parties on the merits of the cause, so that,

if affirmed, the trial court only has to proceed with execution of the judgment.

Kellerman, 119 Ill. 2d at 115. While the order need not dispose of all the issues

presented by the pleadings, it must be final in the sense that it disposes of the rights

of the parties, either upon the entire controversy or upon some definite and separate

part thereof. Id. The circuit court’s dismissal of counts I, II, IV, and V did not meet

that requirement.

¶ 26 Counts I, II, IV, and V arose from the same set of operative facts and sought

precisely the same thing as the underlying cause of action asserted by Blumenthal:

division of the value of the parties’ Chicago home. Rather than being distinct and

separate from Blumenthal’s action, these counts merely advanced different

analytical approaches for determining how the home or its proceeds should be

allocated between the parties. They were, in effect, different iterations of the very

same claim. When they were dismissed, the ultimate question—how the value of

the residence should be split—remained unresolved. The dismissal served only to

narrow the criteria applicable to that decision.

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¶ 27 Although we have found no cases directly on point, our appellate court has

recognized that where one claim based on the same operative facts is stated

differently in multiple counts, the dismissal of fewer than all counts is not a final

judgment as to any of the party’s claims as required by Rule 304(a). See Davis v.

Loftus, 334 Ill. App. 3d 761, 766 (2002). Similarly, we have held that where an

order disposes only of certain issues relating to the same basic claim, such a ruling

is not subject to review under Rule 304(a). To the contrary, permitting separate

appeals of such orders promotes precisely the type of piecemeal appeals Rule

304(a) was designed to discourage. See In re Marriage of Leopando, 96 Ill. 2d 114,

119-20 (1983). Based on this reasoning, the portion of the circuit court’s order

dismissing counts I, II, IV, and V of Brewer’s counterclaim was not appealable

under Rule 304(a).

¶ 28 Second, even if the appellate court had jurisdiction to review the dismissal of

counts I, II, IV, and V, its resolution of the appeal was improper and cannot stand.

As discussed, the appellate court’s conclusion that the circuit court erred in

dismissing those counts was predicated on its repudiation of this court’s decision in

Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court’s rejection of Hewitt was

tantamount to overruling that decision. However, overruling a decision by the

Illinois Supreme Court is an action the appellate court has no authority to take.

People v. Artis, 232 Ill. 2d 156, 164 (2009) (“The appellate court lacks authority to

overrule decisions of this court, which are binding on all lower courts.”). While the

appellate court was free to question Hewitt and recommend that we revisit our

holding in the case, under the judicial system created by the Illinois Constitution, it

could not, itself, declare that one of our decisions was no longer controlling

authority. As we have recently explained,

“The judicial article of the Illinois Constitution of 1970, like its predecessor in

the constitution of 1870, creates a three-tiered court system, with the appellate

court sitting in review of the circuit courts, and the supreme court sitting in

review of the appellate and circuit courts. Ill. Const. 1970, art. VI. A

fundamental principle flows from this hierarchical structure: ‘Where the

Supreme Court has declared the law on any point, it alone can overrule and

modify its previous opinion, and the lower judicial tribunals are bound by such

decision and it is the duty of such lower tribunals to follow such decision in

similar cases.’ ” (Emphasis in original.) Price v. Philip Morris, Inc., 2015 IL

117687, ¶ 38 (quoting Agricultural Transportation Ass’n v. Carpentier, 2 Ill.

2d 19, 27 (1953)).

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¶ 29 Accordingly, even if the appellate court disagreed with Hewitt, it remained

bound by that decision and should have left it to this court to reassess the decision’s

validity.

¶ 30 Because the appellate court’s reversal of the dismissal of counts I, II, IV, and V

of Brewer’s counterclaim was predicated on the exercise of jurisdiction it did not

possess and the repudiation of legal precedent it had no authority to overrule, we

would normally be inclined to simply vacate its ruling as to those counts and

remand to the circuit court for further proceedings. In this case, however, a remand

would serve no purpose. That is so because while Brewer was pursuing this appeal,

she and Blumenthal continued to litigate the underlying partition action. The matter

of how the home should be divided has now been finally determined by the circuit

court.

¶ 31 Initially, Brewer recognized that resolution of the underlying partition action

could affect her counterclaim and therefore moved for a stay of the proceedings on

the partition until appeal of the dismissal of her counterclaim was resolved.

Although the circuit court denied the stay, it indicated that the question of a stay

could be revisited if Brewer posted an appeal bond. From the record, it appears that

Brewer elected not to exercise that option. Instead, the partition action proceeded to

trial on the merits in August 2014.

¶ 32 The partition trial was conducted over a three-day period. In the course of the

trial, testimony was presented regarding when the home was purchased, who

contributed to the earnest money and down payment for the purchase, which of the

parties and their children lived in the home and when, the cost of upkeep and

repairs and who paid those costs, how and when certain other personal and real

property was divided by the parties, the disposition of inheritances Brewer received

from her parents, and how Brewer and Blumenthal handled their respective

finances, including joint investment accounts. The court heard the circumstances of

the parties’ breakup; listened to analyses of real estate values and market conditions

in the neighborhood; and received evidence regarding the parties’ income taxes and

the source and amounts of mortgage payments, insurance, utilities and taxes on the

property. The circuit court then took the matter under advisement.

¶ 33 On October 9, 2014, the circuit court reconvened to share its findings with the

parties. After dealing with some minor issues regarding various items of personal

property, including photographs and skis, the court turned to the issue of the home.

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It concluded that the parties had held the property as tenants in common; that its

current market value was $1 million; that Blumenthal had paid the earnest money

and down payment for the purchase of the home, an amount which totaled

$235,000; and that Blumenthal was entitled to return of that sum.

¶ 34 Subtracting the $235,000 from the home’s $1 million value left $765,000. The

court held that this sum should be split evenly between the parties, giving each of

them a claim to $382,500 of the home’s value. The court further held, however, that

this distribution was subject to various adjustments. Noting that this had been a

romantic domestic relationship that had gone sour, the court rejected Blumenthal’s

argument that Brewer should have to pay her rent for the time she remained in the

home after Blumenthal decided to move out. At the same time, the court thought it

inappropriate to compensate Brewer for the value of the work she did on the home

herself. On the other hand, the court opined that Brewer should receive credits for

mortgage payments, taxes, and insurance, as well as for various maintenance and

repair expenses incurred by her that were necessary for the home’s proper upkeep.

The court computed these credits to total $151,700.55, which it believed should be

deducted from Blumenthal’s $382,500 share of the home’s net value after

subtraction of the down payment and earnest money, and added to Brewer’s share.

This left Blumenthal with $230,799.45 of what the court referred to as the home’s

“equity” and Brewer with $534,200.55. Finally, the court indicated that it would

give Brewer the option of buying out Blumenthal’s share of the Chicago home. If

Brewer declined to exercise that option, the property would be put on the market

and sold. A written order to that effect was entered by the court after the hearing

concluded.

¶ 35 Neither party appealed. Instead, Brewer elected to buy out Blumenthal’s share

in accordance with the valuations made by the circuit court. According to public

records of which we can take judicial notice, Blumenthal and Blumenthal’s civil

union partner issued a quitclaim deed to Brewer in January 2015. Brewer

subsequently conveyed her interest in the home to a trust.

¶ 36 Because no appeal was taken from the court’s judgment setting the value of the

home and allocating the home’s equity between the parties and because the

property has now been conveyed in a manner chosen by the parties in accordance

with the court’s judgment, Brewer’s arguments regarding the legal sufficiency of

counts I, II, IV, and V of her counterclaims have been rendered moot. A matter

becomes moot on review when, because of events occurring after the appeal was

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filed, there is no longer an actual controversy or the reviewing court cannot grant

the complaining party effectual relief. In re Marriage of Donald B., 2014 IL

115463, ¶ 23. Such is the case here.

¶ 37 Whatever our view might be of the merits of Brewer’s legal theories on which

counts I, II, IV, and V of her counterclaim are based, the outcome of the case would

not change. As noted earlier, those theories were all directed at how the value of the

home should be divided. That division has now been made and is final. Brewer

obtained financing, the trust she established now owns the house, and Blumenthal

has been paid for her interest in it. The deal is done. The object of the controversy

has been settled.

¶ 38 Brewer has suggested that the matter is not moot because if we ruled in her

favor, the circuit court could undo its final judgment, set aside the partition, and

consider anew how the value of the home should be divided. Pressed at oral

arguments, Brewer did not explain (and we still do not see) how this could possibly

be so.

¶ 39 The finality of the judgment in the underlying partition action was not affected

by Brewer’s election to seek review of the dismissal of her counterclaim by means

of Rule 304(a). Had Brewer wanted to avoid that result and defer final resolution of

how the value of the home should be allocated until the viability of her alternate

theories was resolved, she could have immediately appealed the circuit court’s

denial of her motion to stay the underlying case. Under established Illinois law, the

denial of a stay of trial court proceedings is treated as a denial of a request for a

preliminary injunction and is appealable as a matter of right under Illinois Supreme

Court Rule 307(a)(1) (eff. Feb. 26, 2010). See, e.g., Cholipski v. Bovis Lend Lease,

Inc., 2014 IL App (1st) 132842, ¶¶ 32-33; Estate of Bass v. Katten, 375 Ill. App. 3d

62, 69-70 (2007).

¶ 40 In addition, and more importantly, if Brewer believed that the circuit court’s

subsequent ruling disposing of the home was legally deficient for failing to take

into account the theories advanced in her counterclaim, she could have appealed the

circuit court’s final judgment in the underlying case pursuant to Illinois Supreme

Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,

2015)). She did not do that either. Rather, she accepted the circuit court’s partition

ruling, bought out Blumenthal’s share of the property for the amount specified by

the court, and continued to reside there, as the court gave her the option of doing.

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¶ 41 Having pursued this strategy, Brewer would be foreclosed from pursuing

counts I, II, IV, and V of her counterclaim even if we agreed that those counts

should not have been dismissed based on Hewitt. Because the partition action

proceeded to final judgment and no appeal from that judgment was taken,

reinstatement of counts I, II, IV, and V of the counterclaim would be tantamount to

permitting Brewer to proceed with a new and separate action with respect to

division of the home’s value. That is impermissible.

¶ 42 Under the doctrine of res judicata, a final judgment on the merits rendered by a

court of competent jurisdiction acts as a bar to a subsequent suit between the parties

involving the same cause of action. River Park, Inc. v. City of Highland Park, 184

Ill. 2d 290, 302 (1998). A cause of action is defined by the facts which give rise to a

right to relief. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 10. “ ‘[S]eparate

claims will be considered the same cause of action for purposes of res judicata if

they arise from a single group of operative facts, regardless of whether they assert

different theories of relief.’ ” Hayashi v. Illinois Department of Financial &

Professional Regulation, 2014 IL 116023, ¶ 46 (quoting River Park, Inc. v. City of

Highland Park, 184 Ill. 2d at 311). These principles extend to claims arising from

the same operative facts as the plaintiff’s claim that were or could have been raised

by the defendant, and it has been held that res judicata bars a subsequent action if

successful prosecution of that action would, in effect, nullify the judgment entered

in the original action. See Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 530-31

(2005). That, of course, is precisely what would happen if the appellate court’s

reinstatement of counts I, II, IV, and V were upheld by this court and Brewer

ultimately prevailed.

¶ 43 Moreover, even if resuscitation of counts I, II, IV, and V of the counterclaim

were viewed as a mere continuation of the same proceeding rather than

commencement of a new action, revisiting the merits of those counts would still be

foreclosed. As previously indicated, Brewer could have sought an immediate

appeal of the circuit court’s denial of her request for a stay of the partition action or

filed an appeal from the circuit court’s judgment finally disposing of the partition

action on the merits. She did neither. Instead, Brewer permitted that judgment to

stand unchallenged, accepted the court’s division of the home’s value and

purchased Blumenthal’s interest in the property in accordance with the circuit

court’s ruling. Where, as here, a party fails to challenge a legal decision when it has

the opportunity to do so, that decision, as a general rule, becomes “the law of the

case for future stages of the same litigation, and [that party is] deemed to have

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waived the right to challenge that decision at a later time. [Citations.]” (Internal

quotation marks omitted.) Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540, 547

(1997). The law-of-the-case doctrine bars relitigation of issues of both law and fact.

Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.

Similarly, it is well established that if a party proceeds to trial and voluntarily

accepts the benefit of a judgment in his or her favor with respect to the disposition

of property, that party is precluded from later challenging that judgment, including

sufficiency of the property’s valuation. See County of Cook v. Malysa, 39 Ill. 2d

376, 379 (1968). Brewer, therefore, is precluded from further litigating the

disposition of the parties’ home. Accordingly, the appellate court should not have

entertained her appeal from the dismissal of counts I, II, IV, and V of her

counterclaim, and its ruling as to the viability of those counts must be vacated.

¶ 44 Counterclaim Count III

¶ 45 Unlike counts I, II, IV, and V, count III of Brewer’s counterclaim asserts a

separate and distinct claim that does not concern the partition or value of the

Chicago home. Instead, count III requests that the court impose a “Constructive

Trust on Blumenthal’s Medical Practice to Remedy Unjust Enrichment Or, in the

Alternative, for Restitution.” Therefore, the portion of the circuit court’s order

dismissing count III of Brewer’s counterclaim was final and appealable under Rule

304(a). See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987).

¶ 46 According to count III, “[t]hroughout the course of their relationship, Brewer

and Blumenthal commingled their savings and investments.” It was the funds from

this joint account that went toward the purchase of Blumenthal’s ownership interest

in her medical practice group, Gynecologic Specialists of Northwestern, S.C.

(GSN). Brewer contends that she allowed Blumenthal to use their joint account for

this investment with the reasonable understanding and expectation that she,

Brewer, would continue to benefit from the earnings derived from GSN. Once the

couple ended their relationship in 2008, these financial benefits ceased, and

Blumenthal retained the entire interest in the medical group, thereby keeping all of

the earnings from the medical practice. Based on these allegations, Brewer claims

that Blumenthal is unjustly enriched. Therefore, Brewer requests that this court

create a constructive trust from Blumenthal’s share of the annual net earnings of the

medical group or any portion of the proceeds from any sale of Blumenthal’s interest

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in the group that was attributable to Brewer’s earnings or inheritance during their

relationship and that this court award her the annual net earnings of GSN

attributable to her as well as award her this portion of the proceeds from any sale of

Blumenthal’s interest in GSN.

¶ 47 “ ‘A constructive trust is one raised by operation of law as distinguished from a

trust created by express agreement between the settlor and the trustee.’ ” Suttles v.

Vogel, 126 Ill. 2d 186, 193 (1988) (quoting Perry v. Wyeth, 25 Ill. 2d 250, 253

(1962)). A constructive trust is an equitable remedy, which may be imposed where

the person in possession of the property would be unjustly enriched if he or she

were permitted to retain that property. In re Liquidation of Security Casualty Co.,

127 Ill. 2d 434, 447 (1989). The sole duty of the constructive trustee is to transfer

title and possession of the wrongfully acquired property to the beneficiary.

Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 299 (2000).

¶ 48 Blumenthal argues that the Medical Corporation Act (805 ILCS 15/1 et seq.

(West 2010)) and the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West

2010)) prohibit Brewer, a licensed attorney, from being a beneficiary of a

constructive trust created on her ownership interest in GSN, unless Brewer is also a

licensed doctor. Under the Medical Corporation Act, anyone who is not licensed

pursuant to the Medical Practice Act is prohibited from having any part in the

“ownership, management, or control” of a medical corporation. 805 ILCS 15/13

(West 2010). In addition, fee-splitting arrangements between a licensed medical

doctor and a nonlicensed medical doctor are likewise prohibited under the Medical

Practice Act. 225 ILCS 60/22.2 (West 2010).

¶ 49 Brewer’s counterclaim explains that GSN is an Illinois corporation that

characterizes itself as an all-woman practice of experienced physicians dedicated to

providing comprehensive health care to women. Blumenthal is licensed under the

Medical Corporation Act as a medical doctor, which allowed her to be one of the

six owners of GSN. The statutory rule is clear: As an owner of the medical group,

Blumenthal is prohibited from transferring any of her ownership interest or any

proceeds from a sale of her interest in GSN to a nonlicensed medical doctor. These

prohibitions are similar to the prohibitions of a lawyer forming a partnership with a

nonlawyer if any of the activities of the partnership consist of the practice of law

(Ill. R. Prof’l Conduct (2010) R. 5.4(b) (eff. Jan. 1, 2010)) or the prohibition of

sharing legal fees with a nonlawyer (Ill. R. Prof’l Conduct (2010) R. 5.4(a) (eff.

Jan. 1, 2010)). Because Brewer is not a licensed medical doctor, transferring title

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and possession of Blumenthal’s interest in GSN through a constructive trust to

Brewer is unattainable due to the prohibitions of the Medical Corporation Act and

the Medical Practice Act.

¶ 50 In the alternative, Brewer requests the common-law remedy of restitution for an

undisclosed amount of funds she deposited into the couple’s joint account since the

year 2000, which was used to purchase Blumenthal’s ownership interest in GSN.

Brewer raises the same arguments she made before the appellate court, which ruled

in her favor, permitting her to bring common-law remedies against Blumenthal.

Therefore, Brewer requests this court uphold the appellate court’s review of the

longstanding public policy in Illinois barring unmarried, cohabiting partners from

seeking common-law property rights if the claims are not independent from the

parties’ relationship.

¶ 51 To understand Illinois’s public policy concerning the common-law rights of

unmarried, cohabiting couples, we must begin with a review of the history in

Illinois concerning the matter—a history the parties and amici have extensively

outlined in their briefs. One thing is certain as argued in the briefs: Illinois’s

statutory prohibition of common-law marriage and this court’s prior decision in

Hewitt are imperative to resolving the issue before this court. We therefore turn to

that matter.

¶ 52 Common-law marriages are invalid in Illinois and have been since the early

part of the last century. The prohibition is statutory and unequivocal. Section 214 of

the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)) expressly

provides that “[c]ommon law marriages contracted in this State after June 30, 1905

are invalid.”

¶ 53 Prior to this legislative enactment, the doctrine of common-law marriage was a

judicially sanctioned alternative to formal marriage. People v. Shaw, 259 Ill. 544,

548 (1913). In Hewitt, decided in 1979, this court undertook an extensive and

in-depth public policy analysis with respect to the statutory change by which

common-law marriages were abolished.

¶ 54 At issue in Hewitt was whether public policy barred the granting of

common-law relief to plaintiff Victoria Hewitt, who was in a cohabiting,

marriage-like relationship with the defendant, Robert Hewitt. Hewitt, 77 Ill. 2d at

52. Victoria and Robert commenced their relationship in 1960, while they were

attending college in Iowa. Id. at 53. After Victoria became pregnant, Robert

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proclaimed to Victoria “that they were husband and wife and would live as such, no

formal ceremony being necessary, and that he would ‘share his life, his future, his

earnings and his property’ with her.” Id. The parties immediately began holding

themselves out as a married couple. Id. Relying on Robert’s promises, Victoria

began to assist in paying for Robert’s education and establishing a dental practice,

helping him earn more than $80,000 annually and accumulate large amounts of

property, owned either jointly with Victoria or separately. Id. at 53-54.

¶ 55 After several years together, the relationship became sour, and Victoria filed for

divorce, which the circuit court dismissed because the parties were never married.

Id. at 52. Victoria filed an amended complaint that sought an equitable one-half

share of the parties’ assets, based upon theories of implied contract, constructive

trust, and unjust enrichment, which resulted from their “family relationship.” Id. at

53. The circuit court dismissed the amended complaint, “finding that Illinois law

and public policy require such claims to be based on a valid marriage.” Id. at 54.

¶ 56 The appellate court reversed, giving considerable weight to the fact that the

parties had held themselves out as a couple for over 15 years and lived “a most

conventional, respectable and ordinary family life.” Hewitt v. Hewitt, 62 Ill. App.

3d 861, 863 (1978). The appellate court noted that the “single flaw” of Robert’s and

Victoria’s relationship was the lack of a valid marriage. Id. The appellate court

concluded that Victoria should not be denied relief based on public policy grounds.

Id. at 867, 869. Adopting the reasoning of the “widely publicized” case of Marvin

v. Marvin, 557 P.2d 106 (Cal. 1976), the appellate court held that the amended

complaint stated a cause of action on an express oral contract. Hewitt, 62 Ill. App. at

at 868. In Marvin, Michelle Marvin and actor Lee Marvin cohabited for seven years

before Michelle sought, by way of a contract action, to enforce Lee’s oral promise

that they would share earnings and property for life. Marvin, 557 P.2d at 110. In

resolving her claim for one-half the property accumulated in defendant’s name

during that period, the California court held 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. Id. at 116. Consequently, the appellate court reversed and

remanded the case. Hewitt, 62 Ill. App. 3d at 869.

¶ 57 On appeal to this court, we unanimously reversed the appellate court’s decision.

Hewitt, 77 Ill. 2d at 66. Addressing the issue of whether the granting of

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common-law relief to the plaintiff, an unmarried cohabitant, was barred by public

policy, we began by acknowledging that:

“The issue of unmarried cohabitants’ mutual property rights *** cannot

appropriately be characterized solely in terms of contract law, nor is it limited

to considerations of equity or fairness as between the parties to such

relationships. There are major public policy questions involved in determining

whether, under what circumstances, and to what extent it is desirable to accord

some type of legal status to claims arising from such relationships. 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.” Id.

at 57-58.

¶ 58 In our view, the legislature intended marriage to be the only legally protected

family relationship under Illinois law, and permitting unmarried partners to enforce

mutual property rights might “encourage formation of such relationships and

weaken marriage as the foundation of our family-based society.” Id. at 58. This

court was concerned that permitting such claims might raise questions about

support, inheritance rights, and custody of nonmarital children. 1 Id. We noted that

the situation between the unmarried couple was “not the kind of arm’s length

bargain envisioned by traditional contract principles, but an intimate arrangement

of a fundamentally different kind.” Id. at 61. Because the question concerned

changing the law governing the rights of parties in the delicate area of marriage-like

relationships, which involves evaluations of sociological data and alternatives, this

court decided that the underlying issue was 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. Id. Accordingly,

this court held that Victoria’s claims were “unenforceable for the reason that they

contravene the public policy, implicit in the statutory scheme of the Illinois

Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually

1

The Hewitt court also questioned and considered the history of whether granting legal

rights to cohabiting adults would encourage “what have heretofore been commonly

referred to as ‘illicit’ or ‘meretricious’ relationships” which could weaken the institution of

marriage. Hewitt, 77 Ill. 2d at 58. Today, this court does not share the same concern or

characterization of domestic partners who cohabit, nor do we condone such comparisons.

Nonetheless, as explained herein, a thorough reading of Hewitt makes clear that the core

reasoning and ultimate holding of the case did not rely nor was dependent on the morality

of cohabiting adults.

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enforceable property rights to knowingly unmarried cohabitants.” Id. at 66. We

reasoned that an opposite outcome of judicially recognizing mutual property rights

between knowingly unmarried cohabitants—where the claim is based upon or

intimately related to the cohabitation of the parties—would effectively reinstate

common-law marriage and violate the public policy of this state since 1905, when

the legislature abolished common-law marriage. Id. at 65-66.

¶ 59 Notably, based on our understanding of the public policy in Illinois and the

legislative prohibition of common-law marriage, we emphatically rejected the

holding in Marvin on which the appellate court relied. Id. In doing so, we found that

provisions of the Marriage and Dissolution Act—retaining fault as grounds for

dissolution of marriage and allowing an unmarried person to acquire the rights of a

legal spouse only if he or she goes through a marriage ceremony and cohabits with

another in the good-faith belief that he is validly married—indicated the public

policy and the judgment of the legislature disfavoring private contractual

alternatives to marriage or the grant of property rights to unmarried cohabitants. Id.

at 64. In rejecting Victoria’s public policy arguments, this court recognized that

cohabitation by the unmarried parties may not prevent them from forming valid

contracts about independent matters, for which sexual relations do not form part of

the consideration and do not closely resemble those arising from conventional

marriages. Id. at 59. However, that was not the type of claim Victoria brought; thus,

her claim failed.

¶ 60 The facts of the present case are almost indistinguishable from Hewitt, except,

in this case, the parties were in a same-sex relationship. During the course of their

long-term, domestic relationship, Brewer alleges that she and Blumenthal had a

relationship that was “identical in every essential way to that of a married couple.”

Although the parties were not legally married, they acted like a married couple and

held themselves out as such. For example, the former domestic partners exchanged

rings as a symbol of their commitment to each other, executed wills and trusts, each

naming the other as the sole beneficiary of her assets, and appointed each other as

fiduciary for financial and medical decision making. Blumenthal and Brewer also

began to commingle their personal and financial assets, which allowed them to

purchase investment property as well as the Chicago home where they raised their

three children. Much like in Hewitt, Brewer alleges that she contributed to

Blumenthal’s purchase of an ownership interest in the medical group GSN, helping

Blumenthal earn the majority of income for the parties and “thereby guaranteeing

the family’s financial security.” Because Blumenthal was able to earn a high

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income, Brewer was able to devote more time to raising the couple’s children and

to attend to other domestic duties. Once Blumenthal’s and Brewer’s relationship

ended, Brewer, like Victoria Hewitt, brought suit seeking various common-law

remedies to equalize their assets and receive an interest in Blumenthal’s business.

¶ 61 As explained supra, our decision in Hewitt did no more than follow the

statutory provision abolishing common-law marriage, which embodied the public

policy of Illinois that individuals acting privately by themselves, without the

involvement of the State, cannot create marriage-like benefits. Hewitt clearly

declared the law on the very issue in this case. Yet, the appellate court in this case

declined to follow our ruling, despite the facts being almost identical to Hewitt.

This was improper. Under the doctrine of stare decisis, when this court “has

declared the law on any point, it alone can overrule and modify its previous

opinion, and the lower judicial tribunals are bound by such decision and it is the

duty of such lower tribunals to follow such decision in similar cases.” (Emphasis in

original.) (Internal quotation marks omitted.) Price v. Philip Morris, Inc., 2015 IL

117687, ¶ 38. The appellate court had no authority to depart from our decision. It

could question Hewitt and recommend that we revisit our holding in the case, but it

could not overrule it.

¶ 62 The appellate court was also ill-advised to adopt the reasoning in Marvin (2014

IL App (1st) 132250, ¶ 31), given that in Hewitt we unquestionably rejected

Marvin. Hewitt, 77 Ill. 2d at 65-66. Determining that the legislature deliberately

declined to follow the reasoning in Marvin, this court noted that during the time

Marvin was being decided the Illinois legislature adopted the civil-law concept of

the putative spouse, which involves a situation where a person goes through a

marriage ceremony and cohabits with another in the good-faith belief that he or she

is validly married. Id. at 64. Once the putative spouse learns that the marriage is not

valid, his status as a putative spouse terminates because “common law marriages

are expressly excluded.” Id. This enactment was essential to Hewitt’s holding

because it provided specific evidence of the General Assembly’s intent to depart

from Marvin’s pure contract theory. In light of our legislative review, we felt

judicial policy making in this area to be inappropriate in light of the “recent and

unmistakeable legislative judgment disfavoring the grant of mutual property rights

to knowingly unmarried cohabitants.” Id. It was our judgment that granting relief

under the facts of the case would be contrary to the legislative intent at the time and

would have the practical effect of reinstating common-law marriage in Illinois. Id.

at 65.

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¶ 63 When considering the property rights of unmarried cohabitants, our view of

Hewitt’s holding has not changed. As in Hewitt, the issue before this court cannot

appropriately be characterized solely in terms of contract law, nor is it limited to

considerations of equity or fairness as between the parties in such marriage-like

relationships. Id. at 57-58. These questions undoubtedly involve some of the most

fundamental policy concerns in our society. Permitting such claims, as sought by

Brewer, would not only impact the institution of marriage but also raise questions

pertaining to other family-related issues. See id. at 58. Moreover, Brewer’s

argument that her relationship with Blumenthal should not be viewed differently

from others who cohabit, like roommates or siblings living together, ignores the

fact that their relationship—which lasted almost three decades and involved raising

three children—was different from other forms of cohabitation. Brewer herself

identified in her counterclaim that her relationship with Blumenthal was not that of

roommates or siblings living together but was “identical in every essential way to

that of a married couple.”

¶ 64 Because rejection of Hewitt is essential to her counterclaim, Brewer requests

that we revisit the decision and overrule it. The rationale, analysis, or distinctions

that can be drawn from the following appellate court cases are helpful in explaining

why we reject Brewer’s invitation to overrule Hewitt and hold that it remains good

law.

¶ 65 Shortly after Hewitt was decided, in Spafford v. Coats, 118 Ill. App. 3d 566

(1983), a decision not mentioned by the appellate court below, plaintiff Donna

Spafford filed a complaint against defendant Richard Coats for the creation of a

constructive trust, alleging that she purchased or paid the down payment from her

own funds for various vehicles. Id. at 568. The problem, however, was that the

vehicles purchased by Spafford were titled in Coats’s name because insurance

premiums would be less. Id. Spafford and Coats were never married, but they

cohabited for more than six years. Id. at 568-69. Using Hewitt as the basis for its

decision, the circuit court directed a verdict in favor of Coats, finding that Spafford

failed to state a cause of action. Id. at 569-70.

¶ 66 On review, the appellate court reversed, holding that in this particular situation,

the nonmarital, cohabiting relationship did not preclude equitable relief on the

vehicles purchased primarily by Spafford but titled in Coats’s name. Id. at 572-73.

The Spafford court distinguished the case from Hewitt, finding that plaintiff’s

claims were based on evidence that she furnished substantially all of the

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consideration for the purchase of several vehicles that defendant retained. Id. at

572. Instead, the appellate court found Spafford’s claims were substantially

independent of the nonmarital relationship between the parties and not based on

rights arising from their cohabitation, i.e., Spafford had actually paid for the motor

vehicles herself. Id. Because Spafford’s claims had an economic basis independent

of the nonmarital, cohabiting relationship, she was permitted to recover those

independent contributions. Id. at 572-73.

¶ 67 The appellate court in Ayala v. Fox, 206 Ill. App. 3d 538 (1990), was faced with

a similar situation as in Spafford. Anita Ayala and Lawrence Fox began their

long-term relationship in 1976. Id. at 539. At Fox’s suggestion, they obtained a

$48,000 loan to build a home. Id. Fox promised Ayala that title to the property

would be transferred to them as joint tenants and that Ayala would receive one-half

of the equity in the property if they stopped residing together. Id. For three years,

Ayala made the majority of the loan, tax, and insurance payments; for the next

seven years, Ayala and Fox jointly made the payments. Id. During the relationship,

Fox never transferred title to the couple as joint tenants, nor did he pay Ayala half

of the equity in the property. Id. Rather, he placed the property in a land trust and

kept personal property purchased with the parties’ joint funds during the

cohabitation. Id. After the parties ended their relationship, Ayala filed suit for a

one-half interest in the realty and half of the personal property. Id. Dismissing the

complaint, the circuit court found that Hewitt barred claims based on property

disputes between cohabitants. Id. at 540.

¶ 68 The appellate court affirmed, holding that Ayala was not entitled to an interest

in the property because she was seeking recovery based on rights “closely

resembling those arising from a conventional marriage,” namely an equitable

interest in the “marital” residence. Id. at 541. The appellate court distinguished the

facts of its case from Spafford, finding Ayala’s claim was intimately related to her

nonmarital cohabitation with Fox and, therefore, Hewitt barred plaintiff’s claims

for equitable relief. Id. at 541-42.

¶ 69 Hewitt’s rationale was also pivotal in Costa v. Oliven (365 Ill. App. 3d 244, 245

(2006), appeal denied, 221 Ill. 2d 633 (2006) (table)), which involved a case where

plaintiff Eugene Costa sued defendant Catherine Oliven, 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.’ ” In this

case, Costa alleged that he assumed the role of stay-at-home dad, nurturing and

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home-schooling their daughter and routinely performing all of the usual activities

associated with maintaining an efficient household in order to enable the defendant

to work full time. Id. In addition, he alleged that during their years together, Oliven

took sole title to almost every asset and possession that was acquired through the

couple’s joint efforts and labor. Id. Based on these allegations, Costa requested the

imposition of a constructive trust upon real, personal, and intellectual property

owned by Oliven as well as an accounting of all income and assets in Oliven’s

possession and an award of punitive damages in the amount of $250,000. Id. at

245-46. Oliven moved to dismiss plaintiff’s claims, arguing that his claims were

unenforceable based on section 214 of the Marriage and Dissolution Act (750 ILCS

5/214 (West 2004)), which prohibits common-law marriage, and based on this

court’s decision in Hewitt. Costa, 365 Ill. App. 3d at 246. Following the holding in

Hewitt, the appellate court affirmed the circuit court’s dismissal of Costa’s

complaint, noting that until the legislature enacted changes, this type of complaint

would continue to fail. Id.

¶ 70 We find that the facts of the case before us today are not only factually similar

to Hewitt, but also similar to Ayala and Costa. According to Brewer’s

counterclaim, one of the ways Blumenthal and Brewer’s domestic relationship was

identical to that of a married couple was, among other things, their decision to

“commingle[ ] their personal property and their finances.” Beginning around the

year 2000, Blumenthal and Brewer, like the parties in Ayala, pooled their assets and

finances, which were used to make purchases including the arrangement to

purchase an ownership interest in GSN. According to Brewer, these purchases were

made for the benefit of providing the “family’s financial security” and to allow

Brewer to devote a substantial amount of her time raising the couple’s children.

The decision between Blumenthal and Brewer to commingle their finances and use

those joint funds to make property and financial investments demonstrates that the

funds were economically dependent on the parties’ marriage-like relationship.

¶ 71 For about eight years, Brewer never objected to the arrangement, nor does the

counterclaim allege that she tried to earmark or record which funds of hers were

going specifically toward the purchase of GSN, as if she were a business partner.

This was unquestionably because Blumenthal and Brewer wanted to live like a

married couple. Both parties voluntarily contributed to the joint account because

that is typical of a married couple. The parties’ arrangement was made possible

because Brewer, like the plaintiff in Costa, agreed to forgo advancing her own legal

career in order for Blumenthal to pursue entrepreneurial endeavors including the

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purchase of an ownership interest in GSN. Indeed, Brewer is correct in labeling

Blumenthal’s and her purchase of GSN as an investment. But it was an investment

for the family, which included Blumenthal, Brewer, and their children. It was not

an investment between business partners. Nor was it the kind of arm’s-length

bargain envisioned by traditional contract principles. Rather, the arrangement to

use the parties’ commingled funds was an arrangement of a fundamentally different

kind, which, like the arrangement in Ayala and Costa, is intimately related and

dependent on Brewer’s marriage-like relationship with Blumenthal.

¶ 72 Additionally, Brewer’s claim for restitution in count III is distinguishable from

Spafford. Unlike the plaintiff in Spafford, Brewer does not allege that she

contributed substantially all of the funds for the purchase of GSN. In fact, Brewer’s

counterclaim does not provide a specific amount of funds she contributed to

Blumenthal’s ownership interest in GSN, nor does Brewer allege that she and

Blumenthal somehow attempted to keep their contributions separate. Rather, the

purchase came after many years of the former domestic partners living together,

raising a family, and depositing funds in their joint account as well as making

certain family purchases out of the joint account. It is undeniable that the purchase

of Blumenthal’s ownership interest in GSN was dependent on the parties’

relationship, because the purchase was made for the family’s financial security.

That was not the situation in Spafford.

¶ 73 While we acknowledge that restitution may be a remedy available to a party

who has cohabited with another (see Hewitt, 77 Ill. 2d at 55-56), that is not the

circumstance concerning Brewer’s restitution claim in count III of her

counterclaim. We find that Brewer failed to make a showing that count III of her

counterclaim has an independent economic basis apart from the parties’

relationship. The joint account used by Blumenthal and Brewer to purchase an

ownership interest in GSN was dependent on their desire to live in a marriage-like

relationship and make purchases out of this account to better their family situation.

Therefore, the purchase of Blumenthal’s ownership interest in GSN from the joint

account is intimately related to the parties’ relationship. Our decision in Hewitt bars

such relief if the claim is not independent from the parties’ living in a marriage-like

relationship for the reason it contravenes the public policy, implicit in the statutory

scheme of the Marriage and Dissolution Act, disfavoring the grant of mutually

enforceable property rights to knowingly unmarried cohabitants. Id. at 66.

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¶ 74 Next, Brewer respectfully asks this court to affirm the appellate court’s

decision, which held in her favor that former cohabitants who live outside the

bonds of marriage, but live in a marriage-like relationship, may bring common-law

property claims. Central to Brewer’s argument are various post-Hewitt legislative

enactments in Illinois, which she claims indicate that the state’s public policy has

shifted dramatically in regards to unmarried couples and their children. According

to Brewer, the following legislative enactments reveal that the application of Hewitt

is no longer justified and that the state’s evolving public policy now contradicts

Hewitt’s rule. We disagree.

¶ 75 Since this court’s decision in Hewitt, the General Assembly has enacted,

repealed, and amended numerous family-related statutes. In 1984, the legislature

adopted a no-fault ground of divorce based on irreconcilable differences to the

Illinois Marriage and Dissolution of Marriage Act. Pub. Act 83-954 (eff. July 1,

1984) (codified at 750 ILCS 5/401(a)(2) (West 2012)). Then in 1985, the Illinois

Parentage Act of 1984 provided 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.” Pub. Act 83-1372 (eff. July 1, 1985) (codified

at 750 ILCS 45/3 (West 2012)). Additionally, since Hewitt, there has been an

amendment to the Probate Act of 1975 extending intestate inheritance rights to

children of unmarried parents (Pub. Act 80-1429 (eff. Sept. 12, 1978) (codified at

755 ILCS 5/2-2 (West 2012))), and a similar amendment to the Illinois Pension

Code, which indicates that children born to unmarried parents are entitled to the

same survivor’s benefits as other children (Pub. Act 84-1028 (eff. Nov. 18, 1985)

(codified at 40 ILCS 5/1-104.2 (West 2012))). Further, Illinois also recognizes the

rights of unmarried couples (and individuals) to adopt children. Pub. Act 96-328

(eff. Aug. 11, 2009) (codified at 750 ILCS 50/2 (West 2010)). In 2011, the

legislature enacted the Illinois Religious Freedom and Civil Union Act, gave legal

status to civil unions, and made such status available to both opposite-sex and

same-sex couples. Pub. Act 96-1513 (eff. June 1, 2011) (adding 750 ILCS 75/1

et seq. (West 2010)). As of 2014, under the Religious Freedom and Marriage

Fairness Act, same-sex couples are now able to marry in Illinois. Pub. Act 98-597

(eff. June 1, 2014) (adding 750 ILCS 80/1 et seq. (West 2014)). More recently, the

Parentage Act of 1984 was repealed (in its entirety) by the 2015 enactment of

Public Act 99-85, which replaced it with the Illinois Parentage Act of 2015. 750

ILCS 45/1 et seq. (West 2014) (repealed by Pub. Act 99-85 (eff. Jan. 1, 2016)

(adding 750 ILCS 46/101 et seq.)). In addition, the Marriage and Dissolution Act,

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which incorporates the statute prohibiting common-law marriages, underwent a

major overhaul this year. Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS

5/101 et seq. (West 2014)).

¶ 76 These post-Hewitt amendments demonstrate that the legislature knows how to

alter family-related statutes and does not hesitate to do so when and if it believes

public policy so requires. Nothing in these post-Hewitt changes, however, can be

interpreted as evincing an intention by the legislature to change the public policy

concerning the situation presently before this court. To the contrary, the claim that

our legislature is moving toward granting additional property rights to unmarried

cohabitants in derogation of the prohibition against common-law marriage 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 set forth in section 214 of the Marriage

and Dissolution Act (750 ILCS 5/214 (West 2014)) has remained completely

untouched and unqualified. That is so even though this court in Hewitt explicitly

deferred any policy change to the legislature. Hewitt, 77 Ill. 2d at 66 (When

deciding complex public-policy considerations, such “ ‘questions are appropriately

within the province of the legislature, and *** if there is to be a change in the law of

this State on this matter, it is for the legislature and not the courts to bring about that

change.’ ” (quoting Mogged v. Mogged, 55 Ill. 2d 221, 225 (1973))).

¶ 77 It is well-understood that when the legislature chooses not to amend a statute to

reverse a judicial construction, it is presumed that the legislature has acquiesced in

the court’s statement of the legislative intent. Wakulich v. Mraz, 203 Ill. 2d 223,

233 (2003) (quoting Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 49-50 (1998)).

Based on this principle, we can presume that the legislature has acquiesced in

Hewitt’s judicial interpretation of the statute prohibiting marriage-like rights to

those outside of marriage. If this court were to recognize the legal status desired by

Brewer, we would infringe on the duty of the legislature to set policy in the area of

domestic relations. As mentioned in Hewitt, the legislative branch is far better

suited to declare public policy in the domestic relations field due to its superior

investigative and fact-finding facilities, as declaring public policy requires

evaluation of sociological data and alternatives. Therefore, we do not find a

compelling reason to reverse course now and depart from our earlier legislative

interpretation, especially in light of almost two score years of legislative inaction

on the matter.

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¶ 78 Brewer’s argument that we should recognize new public policy justifications to

support her counterclaim is further undermined by the fact that all of the public

policy changes to which she cites resulted not from judicial action but from the

legislature. In each example, it was the legislature, not the courts, that determined

what Illinois public policy was (or was not) to be.

¶ 79 We also reject Brewer’s argument that changes in law since Hewitt demonstrate

that the “legislature no longer considers withholding protection from nonmarital

families to be a legitimate means of advancing the state’s interest in marriage.” To

the contrary, this court finds that the current legislative and judicial trend is to

uphold the institution of marriage. Most notably, within the past year, the United

States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584,

2604-05 (2015), held that same-sex couples cannot be denied the right to marry. In

doing so, the Court found that “new insights [from the developments in the

institution of marriage over the past centuries] have strengthened, not weakened,

the institution of marriage.” Id. at ___, 135 S. Ct. at 2596. For the institution of

marriage has been a keystone of our social order and “remains a building block of

our national community.” Id. at ___, 135 S. Ct. at 2601. Accordingly, the Court

invalidated any state legislation prohibiting same-sex marriage because excluding

same-sex couples from marriage would be excluding them “from one of

civilization’s oldest institutions.” Id. at ___, 135 S. Ct. at 2608.

¶ 80 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” (id. at ___, 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.

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¶ 81 It is well settled that the policy of the Marriage and Dissolution Act gives the

state a strong continuing interest in the institution of marriage and the ability to

prevent marriage from becoming in effect a private contract terminable at will, by

disfavoring the grant of mutually enforceable property rights to knowingly

unmarried cohabitants. See Hewitt, 77 Ill. 2d at 65-66. As explained in Hewitt, such

policy was set forth by the enactment of section 214 of the Marriage and

Dissolution Act. Ill. Rev. Stat. 1979, ch. 40, ¶ 214 (codified at 750 ILCS 5/214

(West 2010)). Until the legislature sees fit to change our interpretation of the public

policy in Illinois, under the circumstances of this case, Brewer’s claim for

restitution is prohibited, as it contravenes the public policy implicit in the Marriage

and Dissolution Act.

¶ 82 Lastly, we note that Brewer, the supporting amici, and the partial dissent cite to

numerous cases from our sister state courts and other secondary sources that

support Brewer’s public policy arguments. However, decisions from other state

courts and secondary sources are not binding on this court and, in this particular

situation, are unpersuasive for the reason they do not adequately consider the

deeply rooted public policy in Illinois. In re Parentage of Scarlett Z.-D., 2015 IL

117904, ¶ 55 (citing Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d

478, 489 (1989)). Additionally, it should be noted that these cases and secondary

sources were written prior to, and therefore did not consider, the fundamental

change the United States Supreme Court decision in Obergefell had on legal rights

of same-sex partners.

¶ 83 Due Process and Equal Protection Claims

¶ 84 The determination that the trial court did not err in dismissing Brewer’s

counterclaim does not end this appeal, for Brewer argues that the continued

application of Hewitt’s rule would violate the Illinois and federal constitutional

guarantees of due process and equal protection. See U.S. Const., amend. XIV, § 1;

Ill. Const. 1970, art. I, §§ 2, 12. Brewer claims that Hewitt’s rule preventing

unmarried domestic partners the ability to bring common-law claims available to

all other persons, solely because they are in a marriage-like relationship, does not

rationally advance a legitimate governmental purpose and that it deliberately seeks

to penalize unmarried partners for exercising their constitutionally protected right

to enter into an intimate relationship. Although the appellate court did not address

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this issue, the issue has been raised and fully briefed by both parties. Therefore, we

will address this issue on appeal. Chavda v. Wolak, 188 Ill. 2d 394, 400 (1999).

¶ 85 We disagree with Brewer’s claim that Hewitt’s holding denies unmarried

domestic partners the ability to bring common-law claims solely because they are

in an intimate relationship with another. See supra ¶¶ 65-73. This court’s decision

in Hewitt only disallows unmarried cohabitants who live in a marriage-like

relationship from accessing, under the guise of an implied contract, the rights and

protections specified in the Marriage and Dissolution Act. In other words,

individuals can enter into an intimate relationship, but the relationship itself cannot

form the basis to bring common-law claims. Thus, Hewitt’s holding does not

prevent or penalize unmarried partners from entering into intimate relationships.

Rather, it acknowledges the legislative intent to provide certain rights and benefits

to those who participate in the institution of marriage.

¶ 86 The State’s interest in the creation, regulation, and dissolution of the marriage

relationship is beyond question. Over one hundred years ago, the United States

Supreme Court in Maynard v. Hill, 125 U.S. 190, 211 (1888), recognized that

marriage “is the foundation of the family and of society, without which there would

be neither civilization nor progress.” Throughout history, states have contributed to

the fundamental character of the marriage right by placing that institution at the

center of so many facets of the legal and social order. See Obergefell, 576 U.S. at

___, 135 S. Ct. at 2601. In Williams v. North Carolina, 317 U.S. 287, 298 (1942),

the Court noted that “[e]ach state as a sovereign has a rightful and legitimate

concern in the marital status of persons domiciled within its borders.” This is so

because “[t]he definition of marriage is the foundation of the State’s broader

authority to regulate the subject of domestic relations with respect to the

‘[p]rotection of offspring, property interests, and the enforcement of marital

responsibilities.’ ” United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675,

2691 (2013) (quoting Williams, 317 U.S. at 298). In enacting the Marriage and

Dissolution Act (Pub. Act 80-923 (eff. Oct. 1, 1977) (codified at 750 ILCS 5/101

et seq. (West 2014))), the Illinois Legislature has shown its rightful interest in

defining and regulating domestic relationships.

¶ 87 Since marriage is a legal relationship that all individuals may or may not enter

into, Illinois does not act irrationally or discriminatorily in refusing to grant

benefits and protections under the Marriage and Dissolution Act to those who do

not participate in the institution of marriage. As noted in Hewitt and the line of

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cases that follow its holding, unmarried individuals may make express or implied

contracts with one another, and such contracts will be enforceable if they are not

based on a relationship indistinguishable from marriage. Indeed, Hewitt did nothing

more than effectuate the policy established by the legislature to prevent knowingly

unmarried cohabitants from evading the statutory abolition of common-law

marriage under section 214 of the Marriage and Dissolution Act (750 ILCS 5/214

(West 2010)) by employing theories of implied contract to achieve the same result

that would occur if common-law marriage were recognized.

¶ 88 Brewer, however, contends that it is “particularly irrational” to apply this

principle to her because she and Blumenthal could not marry at the time their

domestic relationship ended because same-sex marriage was not recognized in

Illinois. Although Brewer correctly states that Illinois did not recognize same-sex

marriage at the time the former domestic partners ended their relationship, Brewer

was not without a legal remedy. In 2005, Blumenthal and Brewer took out a

marriage license in Massachusetts, but they never married in that state. While

Illinois would not have recognized the validity of a same-sex marriage entered into

in Massachusetts, Blumenthal and Brewer could have married in Massachusetts,

despite the inconvenience, and brought a legal action similar to the plaintiff and her

partner in Windsor, who in 2007 travelled to Ontario, Canada, in order to be

married because they could not marry where they resided. Windsor, 570 U.S. at

___, 133 S. Ct. at 2689. Additionally, Blumenthal and Brewer could have filed a

legal action seeking to overturn, on constitutional grounds, Illinois’s ban on

same-sex marriage (750 ILCS 5/213.1 (West 2012) (repealed by Pub. Act 98-597

(eff. June 1, 2014))), just as the plaintiffs in Obergefell did. Obergefell, 576 U.S. at

___, 135 S. Ct. at 2593. Yet, Blumenthal and Brewer chose none of these options.

In light of the possible remedies available at the time of the former domestic

partners’ relationship, Brewer cannot now claim that her state and federal due

process and equal protection rights were violated. We, therefore, reject Brewer’s

claims.

¶ 89 CONCLUSION

¶ 90 For the foregoing reasons, the appellate court should not have considered

Brewer’s appeal with respect to that portion of the circuit court’s order disposing of

counts I, II, IV, and V of Brewer’s counterclaim, and it erred when it reversed and

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remanded the cause with respect to count III of Brewer’s counterclaim. The

judgment of the appellate court is therefore vacated in part and reversed in part. The

judgment of the circuit court dismissing Brewer’s counterclaim in full is affirmed.

¶ 91 Appellate court judgment vacated in part and reversed in part.

¶ 92 Circuit court judgment affirmed.

¶ 93 JUSTICE THEIS, concurring in part and dissenting in part:

¶ 94 I agree with the majority’s disposition of counts I, II, IV, and V of Judge

Brewer’s counterclaim against Dr. Blumenthal. I further agree with the majority’s

holding that count III of the counterclaim cannot proceed on a constructive trust

theory. I disagree with the majority’s holding that count III cannot proceed on a

restitution theory.

¶ 95 The trial court dismissed Brewer’s amended complaint in its entirety because it

felt bound to Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court did not feel

similarly bound, but, as the majority notes, that court should have followed that

case. Supra ¶ 61 (quoting Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38). The

central question for us to decide here is whether we should do so.

¶ 96 The doctrine of stare decisis is not an inexorable command (Chicago Bar Ass’n

v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994)), and this court will

depart from it and discard a prior case when there is good cause to do so (Moehle v.

Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982)). Good cause exists when an

earlier ruling has proven to be unworkable or poorly reasoned. People v. Sharpe,

216 Ill. 2d 481, 520 (2005) (citing People v. Jones, 207 Ill. 2d 122, 134 (2003)); see

Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) (stating that “any detours from the

straight path of stare decisis in our past have occurred for articulable reasons, and

only when the Court has felt obliged to bring its opinions into agreement with

experience and with facts newly ascertained” (internal quotation marks omitted)).

In my view, there is good cause to overrule Hewitt. The court’s decision in that case

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was clouded by an inappropriate and moralistic view of domestic partners who

cohabit and founded upon legal principles that have changed significantly.

¶ 97 According to the majority, Hewitt “did no more than follow the statutory

provision abolishing common-law marriage, which embodied the public policy of

Illinois that individuals acting privately by themselves, without the involvement of

the State, cannot create marriage-like benefits.” Supra ¶ 61. In fact, Hewitt did

much more. It 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.” Hewitt, 77 Ill. 2d at 58. “Meretricious” means “of or relating to a

prostitute” (Webster’s Third New International Dictionary 1413 (1986)), so this

court labeled such people as prostitutes.

¶ 98 The majority’s attempt to distance itself from Hewitt’s sweeping and

near-defamatory statement is unconvincing. Though the majority assures that “this

court does not share the same concern or characterization of domestic partners who

cohabit, nor do we condone such comparisons” (supra ¶ 58 n.1), its disavowal of

Hewitt is literally subtextual, occurring only in a footnote. Elsewhere, the majority

borrows troubling language from that case. In Hewitt, the court stated that “the

situation” between the parties was “not the kind of arm’s length bargain envisioned

by traditional contract principles, but an intimate arrangement of a fundamentally

different kind.” Hewitt, 77 Ill. 2d at 61. Here, the majority states that the parties’

investment into Blumenthal’s medical practice was not “the kind of arm’s-length

bargain envisioned by traditional contract principles,” but rather “an arrangement

of a fundamentally different kind, which *** is intimately related and dependent on

Brewer’s marriage-like relationship with Blumenthal.” Supra ¶ 71. The majority

cleverly tries to cloak the real meaning of Hewitt, but what makes these

“arrangements” fundamentally different is the same for the Hewitt court and the

majority.

¶ 99 To state uncategorically that “our view of Hewitt’s holding has not changed”

(supra ¶ 63) and insist that “it remains good law” (supra ¶ 64) is to reaffirm an

oddly myopic and moralistic view of cohabitation. The majority assertion that

Hewitt’s “core reasoning and ultimate holding *** did not rely nor was dependent

on the morality of cohabiting adults” (supra ¶ 58 n.1) is plainly incorrect because

the court’s discussion of the role of the legislature in setting public policy on

domestic relations and the prohibition of common-law marriage comes as an

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even-if afterthought. See Hewitt, 77 Ill. 2d at 60. Insulating the institution of

marriage from the “changing mores of our society” was the clear impetus for our

holding in that case. Id. at 58.

¶ 100 To begin its analysis, the Hewitt court discussed at length the so-called rule of

illegality. The court quoted the first Restatement of Contracts, which stated, “ ‘A

bargain in whole or in part for or in consideration of illicit sexual intercourse or of a

promise thereof is illegal.’ ” Hewitt, 77 Ill. 2d at 59 (quoting Restatement of

Contracts § 589 (1932)). And the court cited the well-known contract law treatise

by Arthur Corbin, the reporter of the First Restatement, as further support for the

traditional rule. Id. (citing 6A Arthur Linton Corbin, Corbin on Contracts § 1476

(1962)). The Hewitt court acknowledged that “cohabitation by the parties may not

prevent them from forming valid contracts about independent matters, for which it

is said the sexual relations do not form part of the consideration” (id.), but rejected

the “real thrust” of the argument that the rule of illegality should be abandoned (id.

at 60). The court decried “the naivete *** involved in the assertion that there are

involved in these relationships contracts separate and independent from the sexual

activity, and the assumption that those contracts would have been entered into or

would continue without that activity.” Id.

¶ 101 Hewitt’s support for the rule of illegality has disappeared. In 1979, Illinois still

criminalized cohabitation. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a “person who

cohabits *** commits fornication if the behavior is open and notorious”). The

Hewitt court did not cite that statute, but quoted Wallace v. Rappleye, 103 Ill. 229,

249 (1882), which held, “ ‘An agreement in consideration of future illicit

cohabitation between the [parties] is void.’ ” Hewitt, 77 Ill. 2d at 58-59. When the

prohibition against cohabitation was repealed in 1990 (see Pub. Act 86-490 (eff.

Jan. 1, 1990) (codified at 720 ILCS 5/11-40 (West 2010))), Wallace was, in effect,

superseded.

¶ 102 The Second Restatement of Contracts, which was completed in 1979 and

published in 1981, deleted the section of the First Restatement quoted in Hewitt and

ceased to define all bargains between people in intimate relationships as illegal.

The section of the Corbin treatise cited in Hewitt has been dropped in the current

version. Today, the treatise recognizes that cohabiting adults are a family and notes,

“The courts' treatment of contracts entered into by cohabiting 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

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Grace McLane Giesel, Corbin on Contracts § 81.4, at 205 (Joseph M. Perillo ed.,

rev. ed. 2003) (hereinafter Corbin). According to the treatise, courts across the

country no longer perceive a conflict between the public policies of protecting and

encouraging marriage and discouraging any exchange of sexual activity for value

and enforcing agreements between former cohabitants. Corbin, supra, § 81.4, at

207-08.

¶ 103 The treatise also refers to the landmark “palimony” case of Marvin v. Marvin,

557 P.2d 106 (Cal. 1976) (en banc), remarking:

“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.” Corbin, supra, § 81.4, at 219.

Brewer and the amici supporting her cite many of those cases, but the majority

declines to follow them because they are not binding authority and “do not

adequately consider the deeply rooted public policy in Illinois.” Supra ¶ 82. That

policy, presumably, is the one mentioned earlier by the majority that individuals

acting privately cannot create marriage-like benefits without the involvement of the

State. Supra ¶ 61. According to the majority, that policy is embodied in prohibition

of common-law marriage that “has remained completely untouched and

unqualified” in the nearly four decades since Hewitt. Supra ¶ 76.

¶ 104 Obviously, Illinois’s common-law marriage ban is still in effect. See 750 ILCS

5/214 (West 2010). Parallel statutes are in effect across the country, 2 but only

Georgia and Louisiana have rulings similar to Hewitt. See Long v. Marino, 441

S.E.2d 475 (Ga. Ct. App. 1994); Schwegmann v. Schwegmann, 441 So. 2d 316 (La.

Ct. App. 1983). Courts in a vast majority of the remaining states, as well as the

District of Columbia, that have chosen not to recognize common-law marriages

also have chosen to recognize claims between former domestic partners like

Blumenthal and Brewer. See, e.g., Bishop v. Clark, 54 P.3d 804 (Alaska 2002);

2

According to the National Conference of State Legislatures, only Alabama, Colorado,

Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, and

Texas still recognize common-law marriage. Http://www.ncsl.org/research/

human-services/common-law-marriage.aspx (updated August 4, 2014).

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Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark.

1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d

142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of

Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d

648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App.

1980); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982); Wilcox v.

Trautz, 693 N.E.2d 141 (Mass. 1998); Featherston v. Steinhoff, 575 N.W.2d 6

(Mich. Ct. App. 1997); In re Estate of Eriksen, 337 N.W.2d 671 (Minn. 1983);

Cates v. Swain, No. 2010-CT-01939-SCT, 2013 WL 1831783 (Miss. May 2, 2013);

Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987); Kinkenon v. Hue, 301

N.W.2d 77 (Neb. 1981); Hay v. Hay, 678 P.2d 672 (Nev. 1984); Dominguez v.

Cruz, 617 P.2d 1322 (N.M. Ct. App. 1980); Morone v. Morone, 413 N.E.2d 1154

(N.Y. 1980); Collins v. Davis, 315 S.E.2d 759 (N.C. Ct. App. 1984), aff’d per

curiam, 321 S.E.2d 892 (N.C. 1984); McKechnie v. Berg, 667 N.W.2d 628 (N.D.

2003); Beal v. Beal, 577 P.2d 507 (Or. 1978) (en banc); Knauer v. Knauer, 470

A.2d 553 (Pa. Super. Ct. 1983); Bracken v. Bracken, 217 N.W. 192 (S.D. 1927);

Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Belcher v. Kirkwood, 383

S.E.2d 729 (Va. 1989); In re Marriage of Lindsey, 678 P.2d 328 (Wash. 1984)

(en banc); Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990); Watts v. Watts, 405

N.W.2d 303 (Wis. 1987); Kinnison v. Kinnison, 627 P.2d 594 (Wy. 1981).

¶ 105 The recognition of claims between domestic partners has not revived the

doctrine of common-law marriage in jurisdictions that have abolished it. See

Principles of the Law of Family Dissolution § 6.01 cmt. a (2002) (hereinafter

Principles). That is, “the history of common law marriage in this country” (Hewitt,

77 Ill. 2d at 64)—or, more precisely, its widespread prohibition—has not prevented

courts across the country from allowing such claims to proceed. See Glasgo, 410

N.E.2d at 1330 (“We do not find that recognition of a claim for a declaration of

property rights in specific property to be a claim which reinstates common law

marriages.”); Hay, 678 P.2d at 674 (“We hasten to point out that Nevada does not

recognize common law marriage. [Citation.] We recognize that the state has a

strong public policy interest in encouraging legal marriage. We do not, however,

believe that policy is well served by allowing one participant in a meretricious

relationship to abscond with the bulk of the couple’s acquisitions.”); Goode, 396

S.E.2d at 438 (“This Court *** recognizes that the state has a strong policy interest

in encouraging legally valid marriages. [Citation.] However, we *** also recognize

that this policy must not defeat a person’s equitable interests, nor a person’s rights

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based upon a valid agreement, expressed or implied.”); Kinnison, 627 P.2d at 595

(“While repeatedly rejecting the doctrine of common-law marriage, this court has

never held, however, that the fact that a man and a woman live together out of

wedlock and engage in a sexual relationship in any way invalidates agreements

between them or, because of the relationship, renders them incapable of contracting

with one another.”); see also Boland, 521 A.2d at 145; Wilcox, 693 N.E.2d at 146;

Hudson, 732 S.W.2d at 926; Dominguez, 617 P.2d at 1322-23; Knauer, 470 A.2d at

564.

¶ 106 In light of this wave of authority, the Restatement (Third) of Restitution and

Unjust Enrichment now contains a new section that provides former domestic

partners with an avenue “to prevent unjust enrichment upon the dissolution of the

relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28(1)

(2011).

¶ 107 Illinois is a clear outlier on this issue. See Principles, supra, § 6.03, Reporter’s

Notes, cmt. b (“Although Hewitt is not entirely isolated [citation] its approach is

distinctly a minority view, and has been explicitly rejected by many courts ***.”).

Hewitt must be overruled because it is outmoded and out of touch with

contemporary experience and opinions on cohabitation.

¶ 108 Additionally, Hewitt must be overruled because the legal landscape that formed

the background for our decision has changed significantly. The Hewitt court was

puzzled by the impact that recognizing claims arising from the relationships of

unmarried cohabitants would have on society. Hewitt, 77 Ill. 2d at 58. Specifically,

the court queried, “[W]hat of the children born of such relationships? What are

their support and inheritance rights and by what standards are custody questions

resolved? What of the sociological and psychological effects upon them of that

type of environment?” Id. That court was the same one that decided Jarrett v.

Jarrett, 78 Ill. 2d 337, 345 (1979), which affirmed a trial court ruling transferring

custody of three children to their father because their mother was cohabiting with

another man. Four years later in In re Marriage of Thompson, 96 Ill. 2d 67, 78

(1983), the court changed course and held that, in Illinois, there is no “conclusive

presumption that, because a custodial parent cohabits with a member of the

opposite sex, the child is harmed.” See also In re Marriage of R.S., 286 Ill. App. 3d

1046, 1055 (1996) (“the clear import of the Thompson opinion is that Illinois courts

should not adopt absolute rules that require a change in custody based on conduct

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of the custodial parent that does not impact the children”). Unmarried couples may

now adopt children. See 750 ILCS 50/2 (West 2010).

¶ 109 As for support and inheritance, the Probate Act of 1975 was amended in 1978 to

extend intestate inheritance rights to children of unmarried parents. See Pub. Act

80-1429 (eff. Sept. 12, 1978) (codified at 755 ILCS 5/2-2 (West 2010)). Similarly,

the Illinois Pension Code was amended in 1985 to extend survivor benefits to such

children. See Pub. Act 84-1028 (eff. Nov. 18, 1995) (codified at 40 ILCS 5/1-104.2

(West 2010)). And the Illinois Parentage Act of 1984, which also went into effect in

1985, specifically provided 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.” Pub. Act 83-1372 (eff. July 1, 1985) (codified

at 750 ILCS 45/3 (West 2010)). That statute has since been repealed and replaced

by the Illinois Parentage Act of 2015.

¶ 110 To bolster its holding, Hewitt relied upon Illinois’s rejection of so-called

no-fault divorce. See Hewitt, 77 Ill. 2d at 63 (citing Ill. Rev. Stat. 1977, ch. 40,

¶ 401). The court took the legislature’s decision to retain fault grounds for divorce

as a “significantly stronger promarriage policy” that reaffirmed “the traditional

doctrine that marriage is a civil contract between three parties[: ]the husband, the

wife[,] and the State” and prevented “the marriage relation from becoming in effect

a private contract terminable at will.” Hewitt, 77 Ill. 2d at 63-64.

¶ 111 The Marriage and Dissolution of Marriage Act was amended in 1984, and since

then Illinois has had no-fault divorce. See 750 ILCS 5/401(a)(2) (West 2010); see

also Karbin v. Karbin, 2012 IL 112815, ¶ 39 (stating that the no-fault divorce

provisions of the Act signaled a shift in policy that “reflected a dissatisfaction with

the traditional requirements of proving fault to obtain a divorce” and “allowed

people to part with dignity” (internal quotation marks omitted)). And the Illinois

Uniform Premarital Agreement Act was adopted in 1990. See 750 ILCS 10/1

et seq. (West 2010); see also In re Marriage of Barnes, 324 Ill. App. 3d 514, 517

(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”). Those statutes answer the Hewitt court’s concern about “the marriage

relation *** becoming in effect a private contract terminable at will.” Hewitt, 77 Ill.

2d at 64.

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¶ 112 Notably, Hewitt’s paternalistic reference to only opposite-gender marriages has

been superseded by the Religious Freedom and Marriage Fairness Act (Pub. Act

98-597 (eff. June 1, 2014) (adding, inter alia, 750 ILCS 80/5 (West Supp. 2013))),

which provides “same-sex and different-sex couples and their children equal access

to the status, benefits, protections, rights, and responsibilities of civil marriage.”

The legislature, in an earlier statute, extended the rights and burdens of marriage to

domestic partners who enter civil unions (see 750 ILCS 75/1 et seq. (West 2010)),

and many public and private employers provide benefits to domestic partners who

cohabit.

¶ 113 The majority, however, refuses to give these statutory amendments much

weight. According to the majority, “[t]hese post-Hewitt amendments demonstrate

that the legislature knows how to alter family-related statutes and does not hesitate

to do so when and if it believes public policy so requires.” Supra ¶ 76. The

implication is that, in light of the many statutory changes since Hewitt, the

legislature’s silence on the rights of cohabitants somehow indicates its rejection of

claims like those brought by Brewer. I interpret that silence differently. Simply

because the legislature has taken some action in the domestic relations arena does

not mean that this court cannot act as well. See In re Parentage of M.J., 203 Ill. 2d

526, 540 (2003). The legislature is undoubtedly well equipped to declare public

policy on domestic relations. Hewitt, 77 Ill. 2d at 61, 66; supra ¶ 77. Courts,

however, are better equipped than the legislature to help parties divide joint assets

using familiar legal and equitable rules. See Watts, 405 N.W.2d at 311 (“Courts

have traditionally developed principles of contract and property law through the

case-by-case method of the common law. While ultimately the legislature may

resolve the problems raised by unmarried cohabiting parties, we are not persuaded

that the court should refrain from resolving such disputes until the legislature gives

us direction.”).

¶ 114 For more than a century and a half, Illinois courts have adjudicated property

disputes between family members. See, e.g., Miller v. Miller, 16 Ill. 296, 298-99

(1855); Collar v. Patterson, 137 Ill. 403, 407 (1891); Heffron v. Brown, 155 Ill.

322, 326 (1895); Finch v. Green, 225 Ill. 304, 312 (1907); Legate v. Legate, 249 Ill.

359, 364 (1911). Generally, courts have held that, when people live together in a

family setting, contributions between them are presumed gratuitous and not

compensable absent an express or implied contract. See In re Estate of Milborn,

122 Ill. App. 3d 688, 692 (1984) (“The rule rests on the idea of mutual dependence

between those who are members of one immediate family ***.” (Emphasis

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omitted.)). Thus, seen in the light of established Illinois law, claims like Brewer’s

claim are nothing new.

¶ 115 More importantly, claims like Brewer’s claim do not implicate the Marriage

and Dissolution of Marriage Act and, thus, do not undermine the public policy of

Illinois, as expressed in the prohibition of common-law marriage, that individuals

themselves cannot create marriage-like benefits. See supra ¶ 61. Although the

parties had what the majority terms a “marriage-like relationship” (supra ¶ 1),

Brewer does not seek “marriage-like benefits” (supra ¶ 61) or “marriage-like

rights” (supra ¶ 77) in count III. She simply asks to bring the same common-law

claims available to other people. She should be allowed to do so. The fact that

Brewer and Blumenthal were once domestic partners should be no impediment.

See Mason, 476 A.2d at 666 (“the position that the courts will not participate in

resolving the disputes in accordance with general principles of law and, thus, will

leave the parties to their own devices, to be unrealistic and unresponsive to social

need”); Salzman v. Bachrach, 996 P.2d 1263, 1268-69 (Colo. 2000) (en banc)

(“cohabitation and sexual relations alone do not suspend contract and equity

principles”). Admittedly, such claims may be difficult to plead and prove (see

Marsha Garrison, Nonmarital Cohabitation: Social Revolution and Legal

Regulation, 42 Fam. L.Q. 309, 321 (2008)), but that is a matter for the trial court.

¶ 116 Hewitt’s flaws, both linguistic and legal, have become more apparent with time.

Our holding there is a court-made rule that this court should overrule. I believe that

count III of Brewer’s amended complaint should be remanded for the trial court to

determine whether she has pleaded a cognizable cause of action. For these reasons,

I dissent.

¶ 117 JUSTICE BURKE joins in this partial concurrence, partial dissent.

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