jointly on family home by dr blumenthal those counterclaims addressed all of the jointly acquired property that the parties had accumulated during their relationship and merely sought to prevent the unjust enrichment that would occur if the be the primary breadwinner and that mrs brewer would subordinate her career and earning to be able to take primary responsibility for caring for the children and the home so that the primary issue before this court is still binding then those constitutional issues have been presented to the court and would need to be reached with the court's permission i'd like to turn first to our argument that hewitt has been implicitly overruled by subsequent legislation and case law and so she would announce the new rule that pretty categorical sweeping rule that excluded unmarried partners from being able to bring any of the common law or equitable claims in the other two litigants could bring in a property dispute in the court and reaching the conclusion that was required by illinois policy at the time relied on several policy and the court expressly discussed the so called rule of illegality preventing in force one of contracts that misconduct that this which is not a requirement or an element of unjust enrichment i mean these parties expected that they would stay together on a permanent basis unfortunately that didn't happen but that is how they had planted arrange their lives and made decisions share joint decisions based on that they resulted in this first suffering very significant financial disadvantage and based on sacrifices she made for the overall wellbeing of that family unit and  basic position of the counter claim to the premises that just as in any other similar situation whether it was unmarried partners or any other two people it would it would be unjust to allow one partner in this case dr is a refueling court we certainly don't have it already to say that we don't have the authority to overrule a supreme court so how do we get the authority to alt i think that it's been implicitly over it's absolute not to be to be clear we're not asking this court it wouldn't be proper to ask this court to find that hewitt was wrongly decided or to overrule it but it is very really well established under illinois law in many other states to that or set any level can actually have a responsibility to recognise when what would otherwise be a binding precedent has been implicitly overruled by either subsequent legislation or subsequent case law that conflicts with the reasoning and result and in the precedent issue in this case you what we have both here well i don't be a better idea to say that public policy has changed instead of saying that something should be you well yes i mean i think they both work together i would absolutely agree with you that the public policy is underlying the hewitt decision have been the public policy of the state is now something else is that really within our up powers or is it something that perhaps best belongs to the supreme court it actually is within your  power people versus fox i would be an example where the appellate court recognized that what i have been a binding illinois supreme court decision had been implicitly overruled by a subsequent illinois supreme court decision even though the subsequent  established aspect of illinois law that the appellate court can it actually does have a responsibility to when when the issue has been presented as it has been here to determine whether a precedent has been implicitly overruled by subsequent case law and legislation i'm here on your unjust enrichment count you're not relying on a broader address or impropriety which you're basically relying on and you war that bring their palauan unjust enrichment theory and i mean the basic premise is that well this brewer is asking for constructive stress on whatever portion of the camp our home is a lot it to dr blumenthal in the partition action based on the party's shared understanding and agreement that mr berger would make financial sacrifices for the greater good of the family unit that ended up greatly enhanced in dr blumenthal wealth in assets and the basic premise a bunch of rich men is that it would be unfair and unjust for one party in that situation to walk away with sole ownership of those  was is this that's correct and we're only talking about the period of time after dr blumenthal left the family home we're talking about the services that mr brewer perform to maintain the home and that interval so the the quantum merit claim is actually quite limited  in scope your opponent also says that at the end of the day you don't even have fit full allocations to support any of the house that some of these counts are based on information really but he'll week he argues that you factual allegations are set forth in that complaint setting forth the counter claims but also you know we're up we're up on the appeal of a motion to dismiss and the circuit court relied exclusively on  address those in the first instance but the issue that's in front of this court on appeal is the circuit court's reliance on hewitt to dismiss all the counterclaim so that's what's before where the court on this appeal will go back to do it now you've indicated numerous ways that public policy of the state has changed but if you were asking us to break this in terms of parties don't have the right to sue for breaches of what would be an otherwise implied contract and it specifically is restitution specifically provides for the kind of relief being sought in this case so how would you suggest that we address us in light of the that claims contractual an edible playings between unmarried partners should be enforced the same way as contractual that will equitable claims between any other two parties i mean what's at issue here is not the invention of new claims but the removal of the prohibition that you would impose the categorical exclusion of one group of litigants and said that you all cannot bring claims that other be available to cousins siblings  members acquaintances business associates so there's no need to invent or impose some some new framework we're not talking about new causes of bachan we're not talking about any sort of special claims that would arise but by virtue of uniquely by virtue of being in an unmarried partnership we're just talking about allowing unmarried partners to bring to have the same range of common law and equitable options that are available to any other two litigants i think that is also what the third be staying a contemplates that's what the current version of korban well in terms of all public policy changes that you pointed out is there been any change in the legislative powers the kind the began what has been termed common a common law marriage i think it's very important to look at what hewitt specifically said about common law marriage wasn't just the fact that the state doesn't recognize common law marriage hewitt interpreted that imputed to the legislature a an intent by getting rid of common law marriage to at the same time disfavor any other type of family relationship and to withhold any type of legal protection or recognition of other family relationships we now know that is research and that that is not in fact the intent of the current illinois legislature because that legislature has extended all kinds of rights and benefits to unmarried partners including including them in the domestic bond statute that the state has extended the mess to our benefits to state employees previously defined in other words at the time when you it the only type of marriage recognized in the state of illinois was a marriage between the sit sex partners where is today the state recognizes in his made it into our law that same sex partners very whereas at the time that you it was decided the the idea the identification for the notion of what a it doesn't have anything to do with what the current state of the lot is in illinois i think the change in illinois law to permit same sex couples to marry is hugely significant and poem but how do you would apply in this instance when it was deciding an issue that related to a definition of marriage that is not the current definition of you would a little book in the under the facts of this case when it was actually decided at a time when the concept of marriage was not the same as what it is now is recognized by our legislature think there is a very strong argument that there is no logical or rational application of hewitt to these facts and clearly the court and he would not contemplate anything like the factual situation in front of it i guess i would just add to that that it's not just that change it's whole so we are living in literally a different family law world in terms of illinois law today than at the time hugh was decided and i can't stress enough the significance of the fact that hewitt relied on the fact that the underlying conduct at issue was a criminal offense i mean that has not been true since one thousand nine hundred in the us supreme court has now in fact held that individuals have a constitutionally protected right to enter into an unmarried partnership the there's no more no fault divorce and again i think it's important to look at that the significance that hewitt gave to that factor hugh was concerned for the hugh accords sumed of by and not embracing no fault divorce the legislature wanted to have a very bright line distinction between marriage as a status and private contractual relationships to an adult but the state has now grace no fault divorce and has now and grace an understanding of marriage as you do the agreement that is more like a private contractual relationship with terminable at will i mean the legislature itself is now clear that line between married and married couples the hewett court also relied on policy is favoring unmarried parents and children those one not a single one of the legislative or judicial policies that he were relied on has any footing today in illinois lots not just that those policies have been eliminated they've actually been replaced with countervailing honor i don't think that's right the circuit court did not find or hold in any way shape or form that those counterclaims were not properly plac the sole order that is on appeal is the dismissal of the counter claims based suggested this court should look at the the validity of the claims i mean we have responded to that i think that if you look at again a page just one eighty three to ninety in the record all of the necessary factual allegations to support every single one retained well there's multiple benefits including this brewer's investment of her own money and including an inheritance in dr blumenthal's medical practice well i'm at issue is it pretty clear that but i do believe that it's certainly a valid argument to be re how would you respond to that i don't think there is any public policy issue there because the remedy sought is construct a trust or in the alternative restitution if there an automatic ride as a spouse to an equitable deal with the bottom line would be treated as if they were married every that's basically what the bottom line comes out to be i don't think so i mean the fact that applying these equitable claims may be solved in some cases with property divisions that resemble some of the divisions that would take place in a marriage does not mean that way that the law would be treating an unmarried partner the same way as a that would be available to any other two parties these were friends family members or associates were asking for the removal of the disability that he would impose based on policies that no longer exist in illinois law that categor one group of people from the ability to bring those claims so we're really looking not at the different treatment of unmarried unmarried couples but were at a different the hewitt will singles out a subset of unmarried people the ones who are suffering some sort of the legal detriment and she lets the legal let's talk about the partition the action to begin with now in a partition action one party is seeking the court wouldn't it be accurate to say that the appellant has the right in that partition action to counter claim and argue before the court that because  since two thousand and eight the parties who jointly owned the property have since separated one is no longer living there but the other has made contributions to the upkeep of that property  to her detriment or to in light of the fact that she's expended sums that the other party has not expanded to preserve the property now wouldn't that person have the right in that partition action in any event to request from the court that the court take into account those facts in in awarding partition absolutely that is part of the action partition that is not a separate because that's part of your putting the goes of deciding who has won if it's on the property as infect a court it's done in this case i think that the court here ought to know the judge martin has tried the underlying partition action and h you to give us a little bit of information regarding what the suit that is actually pending before us but i don't know that it's appropriate or fair to now begin to discuss restatement of restitution would allow this type of action in my i mean here's what it says if two persons have formally lived together in a relationship resembling marriage and if one of them owns a specific aspect to which the other has made substantial uncompensated have a fusion in the form of property or services the person making such contribution has a claim in restitution against the owner is necessary to regret unjust enrichment upon the dissolution of the relationship that's what concerns but i don't think that this is the kind of best you're talking about those cases  and let's just take for example some other type of investment where the parties jointly contributed bonds foreign invest and at some point the parties and end will little soon day they had a relationship resembling we're all assuming if one of them had contributed and then the the relationship end doesn't the restatement permit the party who get provided some form end of investment into that business venture the right to are file an action to recoup those monies or whatever investment because at the time that the investment was made it was it was understood that both parties would benefit from th has clearly or the legislature his sick now that the treatment of children of on married persons should be equal that they shouldn't be discriminated against of course and doesn't  illinois legislature also up with the numerous changes in the laws don't you think the public policy of this state would also invasion that non married  should have the same rights as married parties when the relationship has dissolve from the policy that marriage is that was previously defined isn't the only relationship in which parties can rightfully of petition the court for relief when there's been  non married partners should be treated the same in the eyes of the bill doesn't that signal an indication that the public policy also recognizes that happens all over the put forty seven this is a true the forty seven of the fifty states to forty eight recognize that unmarried couple couples should have the same rights and benefits under the law as married couples i e that is involved issues relating to marriage ended and as it was defined some thirty five years ago which is certainly not the way the legislature has defined marriage in other words say so same sex couples are permitted to marry but at the time that you had it was decided there was no in fact there was a law against that so you it involves a decision interpret ingle law these are to be a married couple as it was then defined and that is not the case in which we are involved today this is not a case that would in any way fit into the definition that the court was dealing with when it decided us i think you would think that marriage is marriage where the facts upon which you would was decided and the fact of the matter is is that in the court was dealing with a married an unmarried couple of opposite sex and that simply isn't the definition today in illinois that the i mean it was dealing with a factual situation that's not even remotely similar to this so really how does how does this case don't want to judge me marriage we only want ceremonial marriage the state is legal monopoly on deciding when people are married and if they're not married then they're not treated as married and they don't have the rights people have under the ho i mean there have been numerous changes in the legislature has often changed the domestic relations laws and doing it continuously for that's done since that but it hasn't change one well still says you got to get married if you want to be the legislatures business to change this they've been clear we don't want to judge made marriage common law marriage only the state can create a marriage relation that is the core holding of what they say only the state can do it that's what the legislature has decided book and this is and what was being asked for here is the antithesis of well when you talk about that there's other changes in the water not merely this change that she'll bring children of unmarried couples should have the in the idea that custody should not be denied because one of the parties is not married or the fact that the young married thirty has been living with another party in an unmarried state law has clearly changed and indicated that custody should not be denied because of the fact that one of the parties is unmarried and living with another person so isn't that also another indication that on very persons should be treated the same adapt the thirty state in this case i think if you did so you'd have to tell the legislature you're telling them we're going to do things differently than you've said no i think that this is all should go to the i think this is an issue for the legislature i think you would hope that this is an issue for the legislature the legislature has occupied this space aren't there you risk decisions that either reject or accept or take on the idea that or it's going to adopt provisions of the council one and three are independent of the partition action count one is not it's seeking to construct a trust after the partition action has taken place whatever understanding is there's been an initial determination not yet a final judgment but i did want to address that and i apologise and need to address that or i forgot apologize for that but yes below counsel or you know he made his required finding that these were final judgments and that there were appealable orders counsel for his for filed a motion for reconsideration of that word or calling his attention the fact that two four and five did not see the dismissal did not seem to be final because they did relate directly to the partition but the circuit court judge denied that motion so he had no choice but to include to preserve those counterclaims to include them and di all that said i do think there's a question about whether they are final and that of course this quirk has to make that determination for itself that's a jurisdictional question and you know i apologize for briefly not taking up a lot of your time you know hewitt itself recognized that the rule it was applying was going to cause injury and hardship to individual plaintiffs and it has it is that the hewitt role is  scholarship for for doing that very thing for causing a lot of harm and injustice the hewett court felt it had to apply that rule nonetheless based on policies that no longer exist well up what  the public policy regarding the idea of common law marriages has been changed his his this argument has pretty much said that marriage yes i mean that's why i think it's so important to look at the significance that hugh a court imputed to the non recognition of common law marriages in illinois that were concluded from that that the legislature intended to in effect say to courts and the world that the only family relationship we value in illinois is marriage and we actually should disfavor and penalize people who enter into still a relationship that law respects and admires and that these disputes that arise should be resolved in light of those same principles that even though marriage now or the concept that permits same sex couples to marry a justice it does the opposite sex couples that the public policy still costers  protect and acknowledges the idea that marriage is  that that's the preferable or the it's one of the austrian goals of the state protect the sanctity still of their marriage regardless of heroes even though the law has changed in terms of what it recognizes marriage to be absolutely illinois law still strongly protection encourages marriage but there's still the same problem policies that the legislature has never changed and the walk to reflect that  common law marriage is suddenly resurrected have been married can be protected regardless of the marital or not merely relationship now what has changed dramatically is that the legislature and the courts now are in complete agreement that it is not appropriate to penalize other types of families in order to protect marriage there is no logical connection there it's not a zero sum game and that the state now respects unmarried partnerships as well as married families and married marriages get a whole bunch of rights and protections that other people don't get but the legislature has extended all kinds of rights and protections that we used of the same rights and protections that go with marriage on an alternative status so we absolutely know that the significance that the hewitt court imputed to the non recognition of common law marriage no longer reflects the only policy it actually contradicts it then it's very significant that the legislature has retained the civil union law even after opening marriage equally to same sex couples because it continues to value and respect those family relationships the things that is noted in their opinion was that regardless of the currys relationship that nothing could be done to change the fact that those parties never fear right i mean even even if the at the time it was unconstitutional to prohibit those parties to be married one of the bases of the opinion was that it couldn't really change the fact that they were never married just like in this case parties never married no nor are they seeking to be or they were not a misprint not seeking to be have this case adjudicated under the marriage and marriage in dissolution of marriage act now a state of paul that again was seeking a statutory right to be recognized as a surviving spouse that is not at issue here now but isn't it in the alice in the sense that the that that one party his seeking to adjudicated as if the parties were weary no i don't think it is now because that was a statutory claim that exists only for marriage we're talking again about common law and equitable claims that are generally applicable can be brought by anybody or not neatly tied to marriage i understand that in result means that the property divisions are going to be similar to what they are in a lot of marriages but the route to get there is completely different we're not we're not asking the court to apply the the solution of marriage act we're asking the court to let these parties use the same equitable and common law framework that would be available to any any other litigants and just as to whether this is appropriate for the legislature or the courts to correct this is of course huge is of course a key dishnet created rule that is it's part of the common law and the legislature has acted to change all of those policies that we've been talking about with the exception of i don't i still don't