Illinois Official Reports 

Supreme Court

Blumenthal v. Brewer, 2016 IL 118781

Caption in Supreme

Court:

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

Appellee.

Docket No. 118781

Filed

Rehearing denied

August 18, 2016

October 20, 2016

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that 

court on appeal from the Circuit Court of Cook County; the Hon. 

Leroy K. Martin, Judge, presiding.

Judgment Appellate court judgment vacated in part and reversed in part.

Circuit court judgment affirmed.

Counsel on

Appeal

Reuben A. Bernick, of Chicago, for appellant.

Angelika Kuehn, of Oak Park, and Catherine Sakimura, Shannon P. 

Minter, Amy Whalen, and Jaime Huling Delaye, all pro hac vice and 

all of San Francisco, California, for appellee.

Camilla B. Taylor and John A. Knight, of Chicago, and Nancy D. 

Polikoff, of Washington, D.C., for amici curiae American Civil 

Liberties Union of Illinois et al.
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Justices 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.

Justice Theis dissented upon denial of rehearing, with opinion, joined 

by Justice Burke.

OPINION 

¶ 1 In this case we are called on 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 and 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. Feb. 26, 2010), 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. 
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¶ 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. 

¶ 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. Count 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, 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 
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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, 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. 
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¶ 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 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 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 
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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. 

¶ 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 
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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)). 

¶ 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. 
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¶ 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. 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 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. 
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¶ 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. 

¶ 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. 
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¶ 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 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 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.
- 11 - 

¶ 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 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 
- 12 - 

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 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 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 
- 13 - 

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 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 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 

 

1The 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. 
- 14 - 

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 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 
- 15 - 

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. 

¶ 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 consideration for the purchase of several vehicles 

that defendant retained. Id. at 572. Instead, the appellate court found Spafford’s claims were 
- 16 - 

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 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.
- 17 - 

¶ 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 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 
- 18 - 

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. 

¶ 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, 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 
- 19 - 

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. 

¶ 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. 
- 20 - 

¶ 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. 

¶ 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 this issue, the issue 
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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 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. We, therefore, reject Brewer’s 

claims. 

¶ 88 CONCLUSION

¶ 89 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, 
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and V of Brewer’s counterclaim, and it erred when it reversed and 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.

¶ 90 Appellate court judgment vacated in part and reversed in part. 

¶ 91 Circuit court judgment affirmed. 

¶ 92 JUSTICE THEIS, concurring in part and dissenting in part: 

¶ 93 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.

¶ 94 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. 

¶ 95 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 was clouded by an inappropriate and moralistic view of domestic partners who cohabit 

and founded upon legal principles that have changed significantly. 

¶ 96 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. 

¶ 97 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 
- 23 - 

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. 

¶ 98 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 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. 

¶ 99 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.

¶ 100 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. 

¶ 101 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 
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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 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. 

¶ 102 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. 

¶ 103 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); 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 

 

2According 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. Common Law Marriage by State, National Conference of State Legislatures, 

http://www.ncsl.org/research/human-services/common- law-marriage.aspx (updated Aug. 4, 2014). 
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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). 

¶ 104 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 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. 

¶ 105 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). 

¶ 106 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. 

¶ 107 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 
- 26 - 

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 of the custodial parent that does not impact the children”). 

Unmarried couples may now adopt children. See 750 ILCS 50/2 (West 2010). 

¶ 108 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. 750 ILCS 46 et seq. (West Supp. 2015). 

¶ 109 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. 

¶ 110 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 enacted 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. 

¶ 111 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 
- 27 - 

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. 

¶ 112 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.”). 

¶ 113 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 

omitted.)). Thus, seen in the light of established Illinois law, claims like Brewer’s claim are 

nothing new. 

¶ 114 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 
- 28 - 

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.

¶ 115 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.

¶ 116 JUSTICE BURKE joins in this partial concurrence, partial dissent. 

 DISSENT UPON DENIAL OF REHEARING 

¶ 117 JUSTICE THEIS, dissenting upon denial of rehearing: 

¶ 118 I continue to believe that the majority was wrong to reaffirm Hewitt v. Hewitt, 77 Ill. 2d 

49 (1979). That case should be overruled, and Brewer should be allowed to pursue her 

restitution claim for the reasons that I stated in my dissent. Supra ¶ 96 (Theis, J., concurring 

in part and dissenting in part, joined by Burke, J.). Further, this court should grant rehearing 

because the majority mischaracterized Brewer’s restitution claim and ignored a key aspect of 

her constitutional challenge. 

¶ 119 The majority opinion rejected that challenge, explaining that Hewitt

“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.” Supra ¶ 85.

According to the majority, “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 *** by employing theories of implied contract to achieve 

the same result that would occur if common-law marriage were recognized.” Supra ¶ 87. The 

majority then concluded that because “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.” Supra ¶ 87. 

¶ 120 That conclusion is suspect for two reasons. First, the majority mischaracterized Brewer’s 

restitution claim. The majority intimated that Brewer makes a claim under the Illinois 

Marriage and Dissolution of Marriage Act. She does not. As I stated in my dissent, 

“[C]laims 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.” Supra ¶ 114.
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Brewer has not employed an implied contract theory to achieve the same result that she 

would obtain under section 503 of the Marriage and Dissolution of Marriage Act (750 ILCS 

5/503 (West 2014)). She has employed an equitable theory to achieve a just result. Claims 

like Brewer’s claim have long been recognized in Illinois. Supra ¶ 113 (Theis, J., concurring 

in part and dissenting in part, joined by Burke, J.). 

¶ 121 Second, the majority ignored the key aspect of Brewer’s constitutional challenge. In her 

response brief, Brewer asserted that applying Hewitt to bar her restitution claim would 

violate due process and equal protection because our holding in that case effectively 

penalizes unmarried domestic partners who cohabitate for exercising their right to an intimate 

relationship, as recognized by the United States Supreme Court in Lawrence v. Texas, 539 

U.S. 558, 578 (2003). Consequently, Hewitt’s holding is not rationally related to a legitimate 

governmental interest. Brewer added that it would be “particularly irrational” to expand 

Hewitt from its fact context of opposite-sex domestic partners who could have married, but 

chose not to do so, to the fact context here of same-sex domestic partners who could not have 

married. According to Brewer, she and Blumenthal “did not choose not to marry; they were 

barred from it” by a law, like those declared unconstitutional in Obergefell v. Hodges, 576 

U.S. ___, 135 S. Ct. 2584 (2015), that has since been repealed and replaced. 

¶ 122 The majority overlooked that point, relying on a false version of history in which all 

Illinoisans could marry as the justification for its application of Hewitt. Of course, it is not 

irrational or discriminatory to deny the protections of the Act’s dissolution provisions to 

persons who never used its marriage provisions. A question remains whether it is irrational 

and discriminatory to deny the protections of the common law to persons who never could 

have used the marriage provisions because of their sexual orientation. 

¶ 123 The majority assumed that all domestic partners who cohabitate are the same. They are 

not. Some domestic partners have always enjoyed the right to marry and consequently have 

always had the option of exercising that right and resorting to the Marriage and Dissolution 

of Marriage Act in the event of divorce. Others have not always enjoyed that right and have 

not always been able to resort to the Act. Until Illinois extended the Act to domestic partners 

who enter civil unions in 2010, all domestic partners who cohabitated without marrying did 

so knowingly, but not all of them did so willingly. During the entire 26 years that Brewer and 

Blumenthal were together, marriage was not a legal relationship for them. 

¶ 124 In her rehearing petition, Brewer contends that the majority’s adherence to Hewitt

repeated and compounded unconstitutional discrimination against same-sex domestic 

partners by barring Brewer’s restitution claim simply because she did not do what the law 

prevented her from doing. According to Brewer, “it is irrational to prevent same-sex couples 

from marrying and, at the same time, exclude them from common law property protections 

on the ground that, if they wished to have any property protections, they should have 

married.” Brewer asserts that application of Hewitt to same-sex domestic partners who 

separated before they could legally marry creates “an untenable double bind” because it 

“conditions an important right—the ability to seek an equitable division of property when a 

relationship ends—on marriage, and then applies that restriction even to couples [who] were 

legally barred from marriage during the entire duration of their relationship, and even though 

that legal prohibition has now been ruled unconstitutional by the U.S. Supreme Court.”
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¶ 125 That double bind and its accompanying constitutional issues are a result of the majority’s 

flawed reasoning. The majority stated that 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. Again, Brewer does not seek marriage-like 

benefits. It defies logic, however, to insist that Brewer could not create marriage-like benefits 

without state involvement when she could not have created a marriage with state 

involvement. Indeed, the state refused to be involved because Illinois did not allow same-sex 

marriage while she and Blumenthal were together. The parties’ relationship may have been 

identical in every essential way to that of a married couple (supra ¶ 63), but those similarities 

did not create a legal marriage. 

¶ 126 The problems created by the majority opinion could be easily solved by discarding 

Hewitt as an outmoded and unfair rule for all domestic partners. Short of that, rehearing 

should be allowed to consider not the majority’s version of Brewer’s constitutional 

challenge, but her actual argument that Hewitt’s rule, as applied to same-sex domestic 

partners like herself and Blumenthal, whose relationships ended before they were permitted 

to marry in Illinois, violates due process and equal protection. I dissent from the denial of 

rehearing. 

¶ 127 JUSTICE BURKE joins in this dissent upon denial of rehearing.