our next case in the morning is case one one eight seven eight one jeannie blumenthal versus eileen amber by the parties r relationship that there will be no common law no judgment marriage one nine hundred seventy nine this court decided on the basis of that decision by the general assembly if there w what this case is about is whether this court was right in rejecting marvin versus martin the palimony case a from california in one thousand nine hundred eighty six which held that unmarried people habits could recover each other from each other as if they had been married on the basis of what they called helen only your maintenance and division of property arising soley out of relationship with out any independent economic basis that's what martin did and any other people who choose who employed theories of implied contract to protect their interests as the cases make clear in this field itself makes clear if there is a married coh wasn't right or if i understand your response to justice twice correctly you're not saying that for all times and all purposes no such claim can be made as in the station only a few if the counter claim specifically relies on the  if if the claim arises i'm married but have with us together and there is a claim that is independent economic relations based such as one party buys a house within the other's name well that would be an independent basis that there would be a remedy for out of the relationship itself any two people who did that would have and i feel like what does what does arise out of the refuse ship itself and what is being certain in this case is a right to property of the other something significant council that at the time these parties lived together your client and if it were legally barred from marriage or any other kind of state sanctioned relationship we address both parties lived in new york new york didn't recognize same sex marriage parties went to ontario got married there alternatively that could have happened here they could have stayed in massachusetts got married alternatively they could have filed an action as  illegal ever knew it was available to them to go back to the questions about what's actually pled here i think you're talking about count three of the complaint yes this is a construct of the trust on the portion of blumenthal's ownership interest and her same idea two reasons number one the leading doesn't actually said he says that some funds from that from that account may have gone to doesn't say they came from judge ruled it says they came from the account which is a for years there is no allegation that dr brewer actually provided those number one number two it is not possible it is not legally possible for a non doctor to have an interest in  mean he dismissed on the basis of humor but there was an analysis of these counts sufficient and in fact sufficient to determine that they all came within the he would dismiss it wasn't just because he didn't just look  but again a constructive trust won't work in this instance either can't you can't and could not constructive trust is not legally available to be used convey an interest in a medical practice because it's not really a trust i cohabitation relationship and in that case appellate court wrote an opinion which i think really written in this case in which it said well other than saying you it wasn't the law anymore which it is that this court is say that the opinion that they wrote basically says the palimony claim in this case can't be sustained there's no legal theory for awarding it it's not a common cow it's not an implied contract it's simply something that would be available only in the bourse but as to the other counts the ones that all the all the arguments that are being made or policy arguments about how things have changed since you it was decided that legislature has enacted various protections for unmarried couples for children or various other things but i think if i at the law looked at the statute and said if we allow the kind of recovery that was allowed and marvan is the last point you would if we allow that kind of recovery then essentially we are recreating how a marriage legislature has said only only the state agreed on marriage judges can't do it people can't be privately by themselves and who would if they can but it becomes a private contract her medical bill and though why do you insist that the recovery of their her investment in blumenthal's medical malpractise is actually dependent on their relationship why can't it just be an investment because the presumption constitutional scrutiny contractual play more equitable claim that arises based just on the fact of the ny marital relationship itself claims asserted are established common law claims to prevent unjust enrichment through the imposition of constructive trust or restitution none of them are any different than the in the claims of the remedies in cases about cousins and have ha being and not marital relationship somehow or entitle to some property resolution but just the opposite just to get a read of the ruling hewitt says simply because a person has been in  of the decision in light of today's times which i think they got to which they had every right to do even in an opinion where they would have indicated that they were forced to follow the law in the place to change it would be in the supreme court the posture i mean it may have been here regardless you know it would have been you taking the appeal i think instead of opposing counsel you sitting in their favorite verse is over their table but would you admit that what the  court can find that decision either its own decision or decision at this court has been implicitly overruled by some legislative developments in any event as you know it's a bit of a new point at at this juncture since certainly this court unquestionably has the authority to determine whether or not the rule and hewitt continues to be i did want to just back on the procedural point for a minute to that this isn't based on you it's not necessarily the outcome can we can you still prevail without us here with you only on one claim only on the claim of constructive trust on the medical practice is that the only claimant he issued at this point the rest move or not oh no your honor not at all i mean these claims were brought in the context of a partition action and a mis crew did ask the t to seventy percent doctrine is thirty percent did any of these issues about who contributed to the house and that kind of thing and mortgage payments and income and all those kind of things was that play out was it brought before the court in the partition action well the problem no because  certainly not fully because the trial court judge believe that he was barred by hewitt from considering those all of these counter claims he dismissed every single counter claim based soley on hewitt which is you know how we ended up here before you all met and granted this may have been the most efficient way to litigate this case but i don't think there is any problems about the continuing jurisdictional problems about the continuing viability of the counterclaims it just needs the trial court judge is going to have to look at them now in light of having already made a partition of the can bark house the i did also briefly want to note in terms of count three and the argument that the release side is only available to spouse now it's you can construct a trust on the annual earnings of the practice or sales and proceeds of the practices no problem with that or in the alternative restitution of the funds a mis burst funds that were used to purchase the practice in the first instance that's on the record on page one ninety one there is nothing in the record about the funds being used to support a judicial campaign you are you know who it was decided thirty six years ago and in the decade since then we've seen very significant changes in illinois public policies at the time have taishan outside of marriage was a criminal offense it's no longer the case the legislature twenty five years ago with new criminal penalties for cohabitation then the us supreme court very significant decision warrants the texas in two thousand and three held that unmarried couples actually have a constitutionally protected right interest in to a relationship intimate relationship outside of marriage that's a very big change that change those changes alone would probably warrant or re evaluation of whether hewitt continues to be good law but that's just part of the pitch or the appellate court that a very thorough job of examining all the policies that issue and hewitt and concluded that all of them have not just been eliminated but actually replace by policies that point just the opposite way to hewitt's rule the time of hewitt when oil was one of three states that had not adopted no fault divorce and also impose really serious restrictions on the ability of spouses inside a marriage to enter into private contractual agreements about property and support that's totally changed illinois does have no fault divorce now and has greatly liberalized the ability of spouses to interact make enforceable agreements about property and support it is the legislature recognize common law marri policy still does but establishing that marriage is the only family relationship that can receive any type of legal recognition or protection in illinois and even beyond that that there was a public policy court said this was listed in the elimination common law marriage is not explicit that there was a public policy of actually disfavoring and penalize people who enter into other types on marital relationships lies in non m unmarried partners both of which have now been held to be unconstitutional but we now know that there's let's put it this way there is no longer in light of illinois current public policy any possible way to reasonably infer from the elimination of common law marriage and intention or public policy to punish or disadvantage or penalize or exclude unmarried partners from generally available legal protections and we know that because the that this is a matter for the legislature to decide and it's been thirty five years since you are in this point the legislature isn't decided this particular issue so how do you dress in that made sense at the time in light of all those then existing public policy but this is not a situation where it would be reasonable or i think even permissible to expect the legislature to step in and solve the problems that have arisen over time as the gulf between the ruling hewitt and the current public policies of the state has become wider and wider over these thirty six years and this is much more this is a judicially created rule about non statutory is a lot more like the situation in carbon where this court held that after the legislature adopted no fault divorce it had to go back and look at its prior ruling that guardians can initiate divorce proceedings in the court concluded that was now in conflict with the divorce policy of the state that was hurting disabled spouses and that eleanor was out of sync with the rest of the country on that issue every single one of those factors is present here rick my question easy for them to understand i mean there's a reason that you know forty seven other states permit these claims to go for that not a single one of those states has it that ever been accomplished by the legislature it's always been by the courts because if you think about it what kind of a law would it be i mean bill i suppose the legislature could literally an act a statute that said unmarried partners can bring the same common law property claims that are available to other persons that would be a very unusual kind of statute the i think a concern here is the argue that that's not at all what you're attempting to do here rather that you're trying to import  the factors the equitable factors and the way in the dissolution statute let's be very clear arbor that clip the basis of that claim is the common law claim to prevent unjust enrichment it is in no way alleging that simply because we were in a non marital relationship the dissolution statute applies and we should get it at will division of property but that might have been an artful to allude to those statutes there's nothing improper about it because the claim itself is based on preventing unjust enrichment and it may when a couple marries the couple marries an automatic presumption it doesn't matter how they arrange their lives or live their lives they could live in different corners of the state and never have made any joint efforts together all the statute presume that they are making joint efforts that any income or wealth coming in is going to the benefit of the household that is a presumption that applies as a matter of law nothing like that applies to an unmarried couple having couple we're not asking the court to apply any such presumption to an unmarried happy couple who are asking the court to give them the opportunity to bring in common law claims to prove that in fact they did have an express or implicit agreement to pool resources to subordinate the case in this for her own financial earning power to the greater good of the household with the expectation that she would not be financially harmed by that at the end of the day so it's not surprising that when a cup all can prove and they have to prove it that they entered into an agreement to be a joint enterprise to pool their resources that the the resulting disposition of property may sometimes look very similar to what you're going to get in the in the disposition of a marriage that doesn't mean you're treating them as spouses and that one commentator i think put it well like we shouldn't confuse  presumption of joint efforts and partnership with the permissible inference of joint efforts and partnership by unmarried couples asserting these common law claims there and i assume all of the possible which would be there as well voluntariness well there was a gift where there was an expectation of return all of those kind of ideas that you see probably more in the commercial setting but almost offenses would still be available absolutely and yet the common law has evolved in very adaptive ways to take account of the fact that they're interpersonal economic transactions between people who are not exactly at arm's length family members sisters neighbors all sometimes it's a nebulous common concept this court rules legislatures presume to know what we ruled and it's up to them to change it if they want but rarely is the language so specific to support legislative acquiescence and i brought it up but i just want to read you the quote from here would the question whether change is needed in the law governing the rights of purdy's in this delicate area of marriage like relationships involves  valuations of social what sociological data and alternatives we believe best suited to the superior in business investigative in fact finding facilities of the legislative branch of the exercise of its traditional authority to declare public policy in the domestic relations feel so it's not just that the he would court ruled the hui court ruled in good and thirty five years nothing right well the difficulty scheme putting explicit provisions about who has standing to bring a parent teacher custody case there's literally nothing like that here that the legislature valleys are not a comprehensive statutory scheme there is no statutory scheme at all i think case is much more like the situation in albus where the court eliminated contributory negligence as a defense noted that when that had been done in other states it always been done by the judiciary noted it was a dish lee created doctrine legislative policies is changed every single one of them with the exception states still doesn't recognize common law marriage but as i noted before the interpretation that the court at the time of hewitt put on the elimination of common law marriage is simply an incompatible with the legislature subsequent actions to protect and recognize unmarried families you cannot conclude that they by the eliminating common law marriage dainton it to deprive the independent economic basis that was argued by mr burnet and or all of your other counts depended upon the non marital relationship and the change in the policy in the state of illinois if you're arguing th enrichment enrichment claims other than the claim of relating to the medical practice are based on the parties implied in law understanding shared understanding that they were arranging their lives such that ms rouer would subordinate her earning power potential earning power for the greater good of the greater financial good of the household with the understanding that she would not be financially disadvantaged at that at the end of the day and then when the at the end of the day what happened is that this blumenthal is leaving the relationship with a vastly greater wealth and earning power she would be unjustly enriched to permit that situation to stand so the end just enrichment is based just as it would be if these were two friends family members neighbors the fact that there was an intimate relationship involved here is really no business any longer it's no longer come allies it's constitutionally protected and it's irrelevant to the analysis of the common law claims to prevent unjust enrichment what's relevant is the parties agreement about their than the claim on the medical practice thank you thank you very much mr rich the partition hearing in our record no it's not in the record because the record went up before the case was tried that that's why you don't have that in your record so we don't know if there was discussion about one person's contribution stand home with the children in the household versus the other person going to work you know all these issues that seem to be raised and then just in richmond we don't know if that was raised in a partition suit where the court end up giving the judge seventy percent and was the basis that happened martin took if you wish it was correct that a lot of these counts are really just arguments about how the party should proceed they don't have an independent economic basis what they don't get it there's no they're not really claims there is arguments about how the anyway these matters were raised when the court made its judgment about what the partition should be there was no reservation of jurisdiction there didn't seem to be necessary for the court to have any reza because reservation of jurisdiction because the think that the the direction of the court as far as legislative action is pretty clear that the legislature is supposed to make that change i don't understand why it's he said the legislature couldn't make a change of course  gone the other way what the legislature has done in the latest revision which case of the marriage and dissolution of marriage act which it's effect on january first of next year they outlawed they've abolished a whole bunch of common law evidence that used to exist lat well the legislature has certainly biased the criminalization i think that's what he's talking about of cohabitation a bunch of other things but but in terms of the legislature has never changed the category of i think the court should consider whether this case even comes within the parameters of reconsider