2016 IL 118781

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118781) 

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

Opinion filed August 18, 2016.

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

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

the judgment and opinion. 

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

Justice Burke. 

OPINION

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

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

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

common-law marriage, precludes unmarried cohabitants from bringing claims 

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

rooted in a marriage-like relationship between the parties.

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

Blumenthal for partition of the family home she shared and jointly owned with 
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Judge Eileen M. Brewer. The couple had maintained a long-term, domestic 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the relief she sought. 

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

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

that the public policy of prohibiting unmarried domestic partners from bringing

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

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

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

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

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

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

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

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

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

appellate court and affirm the judgment of the circuit court.
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¶ 7 BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

as set forth in this state’s statutory prohibition against common-law marriage, 
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precludes knowingly unmarried cohabitants from bringing claims against one 

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

marriage-like relationship between the parties. 

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

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

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

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

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

Illinois legislature had repealed the criminal prohibition on nonmarital 

cohabitation, prohibited differential treatment of marital and nonmarital children, 

adopted no-fault divorce, established civil unions for both opposite-sex and 

same-sex partners, and extended other significant protections to nonmarital 

families. Thus, Brewer maintained that in light of these profound changes, Hewitt’s

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

implicitly overruled and that continued application of Hewitt would directly 

contravene the current policy of this state.

¶ 12 Blumenthal responded that Hewitt was not based on a legislative policy to 

stigmatize or penalize cohabitants for their relationship, but was instead based on a 

statute that abolished common-law marriage in this jurisdiction and is now known 

as section 214 of the Illinois Marriage and Dissolution of Marriage Act (Marriage 

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

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

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

policy that individuals acting privately by themselves cannot create a marriage 

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

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

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

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

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

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

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

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

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

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

gave considerable weight to the fact that in the decades since Hewitt was decided,
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the Illinois legislature has repealed the criminal prohibition on nonmarital 

cohabitation, prohibited differential treatment of marital and nonmarital children, 

adopted no-fault divorce, established civil unions for both opposite-sex and 

same-sex partners, and extended other significant protections to nonmarital 

families. Id. ¶¶ 23-27, 33-34. 

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

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

encouraging marriage because] refusing to hear claims between unmarried 

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

appellate court believed that “[a] cohabitant who by happenstance or design takes 

possession or title to jointly acquired assets is able to retain them without 

consequence when their ‘financially vulnerable’ counterpart is turned away by the 

courts.” Id. 

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

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

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

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

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

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

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

the parties. Id. ¶ 40. 

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

¶ 17 ANALYSIS

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

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

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

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

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

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

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

contravention of Illinois law, and usurped public policy determinations that 
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properly belong to the legislature. Blumenthal also criticizes the appellate court’s 

decision for improperly extending principles of unjust enrichment. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

fundamental reasons unrelated to Hewitt. 

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

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

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

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

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

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

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

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

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

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

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

final judgments that do not dispose of an entire proceeding “if the trial court has 
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made an express written finding that there is no just reason for delaying either 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mortgage Corp., 2012 IL 113419, ¶ 14. 

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

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

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

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

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

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

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

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

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

that requirement. 

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

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

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

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

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

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

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

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

narrow the criteria applicable to that decision.
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¶ 27 Although we have found no cases directly on point, our appellate court has 

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

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

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

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

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

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

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

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

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

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

under Rule 304(a). 

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

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

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

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

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

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

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

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

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

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

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

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

authority. As we have recently explained,

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

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

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

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

fundamental principle flows from this hierarchical structure: ‘Where the 

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

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

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

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

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

2d 19, 27 (1953)). 
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¶ 29 Accordingly, even if the appellate court disagreed with Hewitt, it remained 

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

validity. 

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

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

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

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

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

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

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

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

court. 

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

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

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

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

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

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

trial on the merits in August 2014. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

property, including photographs and skis, the court turned to the issue of the home.
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It concluded that the parties had held the property as tenants in common; that its 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

concluded. 

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

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

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

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

subsequently conveyed her interest in the home to a trust. 

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

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

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

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

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

becomes moot on review when, because of events occurring after the appeal was 
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filed, there is no longer an actual controversy or the reviewing court cannot grant 

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

115463, ¶ 23. Such is the case here. 

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

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

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

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

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

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

has been settled.

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

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

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

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

be so. 

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

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

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

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

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

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

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

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

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

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

62, 69-70 (2007). 

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

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

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

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

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

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

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

the court, and continued to reside there, as the court gave her the option of doing. 
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¶ 41 Having pursued this strategy, Brewer would be foreclosed from pursuing 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ultimately prevailed.

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

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

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

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

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

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

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

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

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

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

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

case for future stages of the same litigation, and [that party is] deemed to have 
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waived the right to challenge that decision at a later time. [Citations.]” (Internal 

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

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

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

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

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

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

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

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

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

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

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

¶ 44 Counterclaim Count III 

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

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

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

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

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

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

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

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

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

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

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

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

this investment with the reasonable understanding and expectation that she,

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

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

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

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

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

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

medical group or any portion of the proceeds from any sale of Blumenthal’s interest 
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in the group that was attributable to Brewer’s earnings or inheritance during their 

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

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

Blumenthal’s interest in GSN. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 1, 2010)). Because Brewer is not a licensed medical doctor, transferring title
- 15 - 

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

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

the Medical Practice Act. 

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

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

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

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

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

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

longstanding public policy in Illinois barring unmarried, cohabiting partners from 

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

parties’ relationship.

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

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

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

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

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

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

that matter.

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

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

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

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

are invalid.” 

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

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

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

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

common-law marriages were abolished.

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

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

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

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

attending college in Iowa. Id. at 53. After Victoria became pregnant, Robert 
- 16 - 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

during that period, the California court held that nonmarital cohabitants should be 

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

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

i.e., prostitution. Id. at 116. Consequently, the appellate court reversed and 

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

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

Hewitt, 77 Ill. 2d at 66. Addressing the issue of whether the granting of 
- 17 - 

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

policy, we began by acknowledging that: 

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

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

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

relationships. There are major public policy questions involved in determining 

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

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

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

impact of such recognition upon our society and the institution of marriage.” Id.

at 57-58. 

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

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

mutual property rights might “encourage formation of such relationships and 

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

court was concerned that permitting such claims might raise questions about 

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

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

bargain envisioned by traditional contract principles, but an intimate arrangement 

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

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

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

court decided that the underlying issue was best suited to the superior investigative 

and fact-finding facilities of the legislative branch in the exercise of its traditional 

authority to declare public policy in the domestic relations field. Id. Accordingly, 

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

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

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

 1

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

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

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

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

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

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

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

of cohabiting adults. 
- 18 - 

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

reasoned that an opposite outcome of judicially recognizing mutual property rights 

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

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

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

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

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

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

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

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

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

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

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

policy and the judgment of the legislature disfavoring private contractual 

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

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

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

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

the consideration and do not closely resemble those arising from conventional 

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

her claim failed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the family’s financial security.” Because Blumenthal was able to earn a high 
- 19 - 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

could not overrule it. 

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

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

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

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

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

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

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

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

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

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

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

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

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

unmistakeable legislative judgment disfavoring the grant of mutual property rights 

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

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

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

at 65. 
- 20 - 

¶ 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 
- 21 - 

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

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

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

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

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

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

independent contributions. Id. at 572-73. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

disputes between cohabitants. Id. at 540. 

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

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

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

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

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

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

for equitable relief. Id. at 541-42. 

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

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

plaintiff Eugene Costa sued defendant Catherine Oliven, with whom he had lived 

for 24 years in a “ ‘quasi-marital’ relationship, with ‘all the indicia of a marital type 

relationship, including love, trust, mutual responsibilities and intimacy.’ ” In this 

case, Costa alleged that he assumed the role of stay-at-home dad, nurturing and 
- 22 - 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

would continue to fail. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

career in order for Blumenthal to pursue entrepreneurial endeavors including the 
- 23 - 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That was not the situation in Spafford. 

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

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

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

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

counterclaim has an independent economic basis apart from the parties’ 

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

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

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

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

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

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

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

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

enforceable property rights to knowingly unmarried cohabitants. Id. at 66. 
- 24 - 

¶ 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, 
- 25 - 

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

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

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

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

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

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

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

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

our legislature is moving toward granting additional property rights to unmarried 

cohabitants in derogation of the prohibition against common-law marriage is flatly 

contradicted by the undeniable fact that for almost four decades since Hewitt, and 

despite all of these numerous changes to other family-related statutes, the statutory 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on the matter. 
- 26 - 

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

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

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

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

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

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

that the “legislature no longer considers withholding protection from nonmarital 

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

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

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

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

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

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

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

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

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

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

invalidated any state legislation prohibiting same-sex marriage because excluding 

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

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

¶ 80 While the United States Supreme Court has made clear that “[t]he Constitution 

*** does not permit the State to bar same-sex couples from marriage on the same 

terms as accorded to couples of the opposite sex” (id. at ___, 135 S. Ct. at 2607), 

nothing in that holding can fairly be construed as requiring states to confer on 

non-married, same-sex couples common-law rights or remedies not shared by 

similarly situated non-married couples of the opposite sex. Legislatures may, of 

course, decide that matters of public policy do warrant special consideration for 

non-married, same-sex couples under certain circumstances, notwithstanding the 

fact that the institution of marriage is available to all couples equally. What is 

important for the purposes of this discussion is that the balancing of the relevant 

public policy considerations is for the legislature, not the courts. Indeed, now that 

the centrality of the marriage has been recognized as a fundamental right for all, it 

is perhaps more imperative than before that we leave it to the legislative branch to 

determine whether and under what circumstances a change in the public policy 

governing the rights of parties in nonmarital relationships is necessary. 
- 27 - 

¶ 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 
- 28 - 

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

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

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

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

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

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

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

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

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

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

prevent or penalize unmarried partners from entering into intimate relationships. 

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

to those who participate in the institution of marriage. 

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

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

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

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

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

the fundamental character of the marriage right by placing that institution at the 

center of so many facets of the legal and social order. See Obergefell, 576 U.S. at 

___, 135 S. Ct. at 2601. In Williams v. North Carolina, 317 U.S. 287, 298 (1942), 

the Court noted that “[e]ach state as a sovereign has a rightful and legitimate 

concern in the marital status of persons domiciled within its borders.” This is so 

because “[t]he definition of marriage is the foundation of the State’s broader 

authority to regulate the subject of domestic relations with respect to the 

‘[p]rotection of offspring, property interests, and the enforcement of marital 

responsibilities.’ ” United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675, 

2691 (2013) (quoting Williams, 317 U.S. at 298). In enacting the Marriage and 

Dissolution Act (Pub. Act 80-923 (eff. Oct. 1, 1977) (codified at 750 ILCS 5/101 

et seq. (West 2014))), the Illinois Legislature has shown its rightful interest in 

defining and regulating domestic relationships. 

¶ 87 Since marriage is a legal relationship that all individuals may or may not enter 

into, Illinois does not act irrationally or discriminatorily in refusing to grant 

benefits and protections under the Marriage and Dissolution Act to those who do 

not participate in the institution of marriage. As noted in Hewitt and the line of 
- 29 - 

cases that follow its holding, unmarried individuals may make express or implied 

contracts with one another, and such contracts will be enforceable if they are not 

based on a relationship indistinguishable from marriage. Indeed, Hewitt did nothing 

more than effectuate the policy established by the legislature to prevent knowingly 

unmarried cohabitants from evading the statutory abolition of common-law 

marriage under section 214 of the Marriage and Dissolution Act (750 ILCS 5/214 

(West 2010)) by employing theories of implied contract to achieve the same result 

that would occur if common-law marriage were recognized.

¶ 88 Brewer, however, contends that it is “particularly irrational” to apply this

principle to her because she and Blumenthal could not marry at the time their 

domestic relationship ended because same-sex marriage was not recognized in 

Illinois. Although Brewer correctly states that Illinois did not recognize same-sex 

marriage at the time the former domestic partners ended their relationship, Brewer 

was not without a legal remedy. In 2005, Blumenthal and Brewer took out a 

marriage license in Massachusetts, but they never married in that state. While 

Illinois would not have recognized the validity of a same-sex marriage entered into 

in Massachusetts, Blumenthal and Brewer could have married in Massachusetts, 

despite the inconvenience, and brought a legal action similar to the plaintiff and her 

partner in Windsor, who in 2007 travelled to Ontario, Canada, in order to be 

married because they could not marry where they resided. Windsor, 570 U.S. at 

___, 133 S. Ct. at 2689. Additionally, Blumenthal and Brewer could have filed a 

legal action seeking to overturn, on constitutional grounds, Illinois’s ban on 

same-sex marriage (750 ILCS 5/213.1 (West 2012) (repealed by Pub. Act 98-597 

(eff. June 1, 2014))), just as the plaintiffs in Obergefell did. Obergefell, 576 U.S. at 

___, 135 S. Ct. at 2593. Yet, Blumenthal and Brewer chose none of these options. 

In light of the possible remedies available at the time of the former domestic 

partners’ relationship, Brewer cannot now claim that her state and federal due 

process and equal protection rights were violated. We, therefore, reject Brewer’s 

claims. 

¶ 89 CONCLUSION

¶ 90 For the foregoing reasons, the appellate court should not have considered 

Brewer’s appeal with respect to that portion of the circuit court’s order disposing of 

counts I, II, IV, and V of Brewer’s counterclaim, and it erred when it reversed and 
- 30 - 

remanded the cause with respect to count III of Brewer’s counterclaim. The 

judgment of the appellate court is therefore vacated in part and reversed in part. The 

judgment of the circuit court dismissing Brewer’s counterclaim in full is affirmed.

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

¶ 92 Circuit court judgment affirmed.

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

¶ 94 I agree with the majority’s disposition of counts I, II, IV, and V of Judge 

Brewer’s counterclaim against Dr. Blumenthal. I further agree with the majority’s 

holding that count III of the counterclaim cannot proceed on a constructive trust 

theory. I disagree with the majority’s holding that count III cannot proceed on a 

restitution theory.

¶ 95 The trial court dismissed Brewer’s amended complaint in its entirety because it 

felt bound to Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court did not feel 

similarly bound, but, as the majority notes, that court should have followed that 

case. Supra ¶ 61 (quoting Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38). The 

central question for us to decide here is whether we should do so. 

¶ 96 The doctrine of stare decisis is not an inexorable command (Chicago Bar Ass’n 

v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994)), and this court will 

depart from it and discard a prior case when there is good cause to do so (Moehle v. 

Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982)). Good cause exists when an 

earlier ruling has proven to be unworkable or poorly reasoned. People v. Sharpe, 

216 Ill. 2d 481, 520 (2005) (citing People v. Jones, 207 Ill. 2d 122, 134 (2003)); see 

Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) (stating that “any detours from the 

straight path of stare decisis in our past have occurred for articulable reasons, and 

only when the Court has felt obliged to bring its opinions into agreement with 

experience and with facts newly ascertained” (internal quotation marks omitted)). 

In my view, there is good cause to overrule Hewitt. The court’s decision in that case 
- 31 - 

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

cohabit and founded upon legal principles that have changed significantly.

¶ 97 According to the majority, Hewitt “did no more than follow the statutory 

provision abolishing common-law marriage, which embodied the public policy of 

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

the State, cannot create marriage-like benefits.” Supra ¶ 61. In fact, Hewitt did 

much more. It etched into the Illinois Reports the arcane view that domestic 

partners who choose to cohabit, but not marry, are engaged in “illicit” or 

“meretricious” behavior at odds with foundational values of “our family-based 

society.” Hewitt, 77 Ill. 2d at 58. “Meretricious” means “of or relating to a 

prostitute” (Webster’s Third New International Dictionary 1413 (1986)), so this 

court labeled such people as prostitutes. 

¶ 98 The majority’s attempt to distance itself from Hewitt’s sweeping and 

near-defamatory statement is unconvincing. Though the majority assures that “this 

court does not share the same concern or characterization of domestic partners who 

cohabit, nor do we condone such comparisons” (supra ¶ 58 n.1), its disavowal of 

Hewitt is literally subtextual, occurring only in a footnote. Elsewhere, the majority 

borrows troubling language from that case. In Hewitt, the court stated that “the 

situation” between the parties was “not the kind of arm’s length bargain envisioned 

by traditional contract principles, but an intimate arrangement of a fundamentally 

different kind.” Hewitt, 77 Ill. 2d at 61. Here, the majority states that the parties’ 

investment into Blumenthal’s medical practice was not “the kind of arm’s-length 

bargain envisioned by traditional contract principles,” but rather “an arrangement 

of a fundamentally different kind, which *** is intimately related and dependent on 

Brewer’s marriage-like relationship with Blumenthal.” Supra ¶ 71. The majority 

cleverly tries to cloak the real meaning of Hewitt, but what makes these 

“arrangements” fundamentally different is the same for the Hewitt court and the 

majority.

¶ 99 To state uncategorically that “our view of Hewitt’s holding has not changed” 

(supra ¶ 63) and insist that “it remains good law” (supra ¶ 64) is to reaffirm an 

oddly myopic and moralistic view of cohabitation. The majority assertion that 

Hewitt’s “core reasoning and ultimate holding *** did not rely nor was dependent 

on the morality of cohabiting adults” (supra ¶ 58 n.1) is plainly incorrect because 

the court’s discussion of the role of the legislature in setting public policy on 

domestic relations and the prohibition of common-law marriage comes as an 
- 32 - 

even-if afterthought. See Hewitt, 77 Ill. 2d at 60. Insulating the institution of 

marriage from the “changing mores of our society” was the clear impetus for our 

holding in that case. Id. at 58. 

¶ 100 To begin its analysis, the Hewitt court discussed at length the so-called rule of 

illegality. The court quoted the first Restatement of Contracts, which stated, “ ‘A 

bargain in whole or in part for or in consideration of illicit sexual intercourse or of a 

promise thereof is illegal.’ ” Hewitt, 77 Ill. 2d at 59 (quoting Restatement of 

Contracts § 589 (1932)). And the court cited the well-known contract law treatise 

by Arthur Corbin, the reporter of the First Restatement, as further support for the 

traditional rule. Id. (citing 6A Arthur Linton Corbin, Corbin on Contracts § 1476 

(1962)). The Hewitt court acknowledged that “cohabitation by the parties may not 

prevent them from forming valid contracts about independent matters, for which it 

is said the sexual relations do not form part of the consideration” (id.), but rejected 

the “real thrust” of the argument that the rule of illegality should be abandoned (id.

at 60). The court decried “the naivete *** involved in the assertion that there are 

involved in these relationships contracts separate and independent from the sexual 

activity, and the assumption that those contracts would have been entered into or 

would continue without that activity.” Id.

¶ 101 Hewitt’s support for the rule of illegality has disappeared. In 1979, Illinois still 

criminalized cohabitation. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a “person who 

cohabits *** commits fornication if the behavior is open and notorious”). The 

Hewitt court did not cite that statute, but quoted Wallace v. Rappleye, 103 Ill. 229, 

249 (1882), which held, “ ‘An agreement in consideration of future illicit 

cohabitation between the [parties] is void.’ ” Hewitt, 77 Ill. 2d at 58-59. When the 

prohibition against cohabitation was repealed in 1990 (see Pub. Act 86-490 (eff. 

Jan. 1, 1990) (codified at 720 ILCS 5/11-40 (West 2010))), Wallace was, in effect, 

superseded. 

¶ 102 The Second Restatement of Contracts, which was completed in 1979 and 

published in 1981, deleted the section of the First Restatement quoted in Hewitt and 

ceased to define all bargains between people in intimate relationships as illegal. 

The section of the Corbin treatise cited in Hewitt has been dropped in the current 

version. Today, the treatise recognizes that cohabiting adults are a family and notes, 

“The courts' treatment of contracts entered into by cohabiting parties evolved in the 

last part of the twentieth century and is clear evidence of how the courts’ view of 

what might be against public policy varies with changes in society’s views.” 15 
- 33 - 

Grace McLane Giesel, Corbin on Contracts § 81.4, at 205 (Joseph M. Perillo ed., 

rev. ed. 2003) (hereinafter Corbin). According to the treatise, courts across the 

country no longer perceive a conflict between the public policies of protecting and 

encouraging marriage and discouraging any exchange of sexual activity for value 

and enforcing agreements between former cohabitants. Corbin, supra, § 81.4, at 

207-08. 

¶ 103 The treatise also refers to the landmark “palimony” case of Marvin v. Marvin, 

557 P.2d 106 (Cal. 1976) (en banc), remarking:

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

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

seem to presume that the relationship is not the substance of the agreement. 

These cases are not concerned that the agreement exists in the context of a 

sexual relationship, but rather are concerned only if the contract’s ‘primary’ 

reason is sexual relations for value.” Corbin, supra, § 81.4, at 219. 

Brewer and the amici supporting her cite many of those cases, but the majority 

declines to follow them because they are not binding authority and “do not 

adequately consider the deeply rooted public policy in Illinois.” Supra ¶ 82. That 

policy, presumably, is the one mentioned earlier by the majority that individuals 

acting privately cannot create marriage-like benefits without the involvement of the 

State. Supra ¶ 61. According to the majority, that policy is embodied in prohibition 

of common-law marriage that “has remained completely untouched and 

unqualified” in the nearly four decades since Hewitt. Supra ¶ 76. 

¶ 104 Obviously, Illinois’s common-law marriage ban is still in effect. See 750 ILCS 

5/214 (West 2010). Parallel statutes are in effect across the country,2 but only 

Georgia and Louisiana have rulings similar to Hewitt. See Long v. Marino, 441 

S.E.2d 475 (Ga. Ct. App. 1994); Schwegmann v. Schwegmann, 441 So. 2d 316 (La. 

Ct. App. 1983). Courts in a vast majority of the remaining states, as well as the 

District of Columbia, that have chosen not to recognize common-law marriages 

also have chosen to recognize claims between former domestic partners like 

Blumenthal and Brewer. See, e.g., Bishop v. Clark, 54 P.3d 804 (Alaska 2002); 

 2

According to the National Conference of State Legislatures, only Alabama, Colorado, 

Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, and 

Texas still recognize common-law marriage. Http://www.ncsl.org/research/

human-services/common-law-marriage.aspx (updated August 4, 2014). 
- 34 - 

Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark. 

1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d 

142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of 

Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d 

648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 

1980); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982); Wilcox v. 

Trautz, 693 N.E.2d 141 (Mass. 1998); Featherston v. Steinhoff, 575 N.W.2d 6 

(Mich. Ct. App. 1997); In re Estate of Eriksen, 337 N.W.2d 671 (Minn. 1983); 

Cates v. Swain, No. 2010-CT-01939-SCT, 2013 WL 1831783 (Miss. May 2, 2013); 

Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987); Kinkenon v. Hue, 301 

N.W.2d 77 (Neb. 1981); Hay v. Hay, 678 P.2d 672 (Nev. 1984); Dominguez v. 

Cruz, 617 P.2d 1322 (N.M. Ct. App. 1980); Morone v. Morone, 413 N.E.2d 1154 

(N.Y. 1980); Collins v. Davis, 315 S.E.2d 759 (N.C. Ct. App. 1984), aff’d per 

curiam, 321 S.E.2d 892 (N.C. 1984); McKechnie v. Berg, 667 N.W.2d 628 (N.D. 

2003); Beal v. Beal, 577 P.2d 507 (Or. 1978) (en banc); Knauer v. Knauer, 470 

A.2d 553 (Pa. Super. Ct. 1983); Bracken v. Bracken, 217 N.W. 192 (S.D. 1927); 

Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Belcher v. Kirkwood, 383 

S.E.2d 729 (Va. 1989); In re Marriage of Lindsey, 678 P.2d 328 (Wash. 1984)

(en banc); Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990); Watts v. Watts, 405 

N.W.2d 303 (Wis. 1987); Kinnison v. Kinnison, 627 P.2d 594 (Wy. 1981). 

¶ 105 The recognition of claims between domestic partners has not revived the 

doctrine of common-law marriage in jurisdictions that have abolished it. See 

Principles of the Law of Family Dissolution § 6.01 cmt. a (2002) (hereinafter 

Principles). That is, “the history of common law marriage in this country” (Hewitt, 

77 Ill. 2d at 64)—or, more precisely, its widespread prohibition—has not prevented 

courts across the country from allowing such claims to proceed. See Glasgo, 410 

N.E.2d at 1330 (“We do not find that recognition of a claim for a declaration of 

property rights in specific property to be a claim which reinstates common law 

marriages.”); Hay, 678 P.2d at 674 (“We hasten to point out that Nevada does not 

recognize common law marriage. [Citation.] We recognize that the state has a 

strong public policy interest in encouraging legal marriage. We do not, however, 

believe that policy is well served by allowing one participant in a meretricious 

relationship to abscond with the bulk of the couple’s acquisitions.”); Goode, 396 

S.E.2d at 438 (“This Court *** recognizes that the state has a strong policy interest 

in encouraging legally valid marriages. [Citation.] However, we *** also recognize 

that this policy must not defeat a person’s equitable interests, nor a person’s rights 
- 35 - 

based upon a valid agreement, expressed or implied.”); Kinnison, 627 P.2d at 595 

(“While repeatedly rejecting the doctrine of common-law marriage, this court has 

never held, however, that the fact that a man and a woman live together out of 

wedlock and engage in a sexual relationship in any way invalidates agreements 

between them or, because of the relationship, renders them incapable of contracting 

with one another.”); see also Boland, 521 A.2d at 145; Wilcox, 693 N.E.2d at 146; 

Hudson, 732 S.W.2d at 926; Dominguez, 617 P.2d at 1322-23; Knauer, 470 A.2d at 

564. 

¶ 106 In light of this wave of authority, the Restatement (Third) of Restitution and 

Unjust Enrichment now contains a new section that provides former domestic 

partners with an avenue “to prevent unjust enrichment upon the dissolution of the 

relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28(1)

(2011). 

¶ 107 Illinois is a clear outlier on this issue. See Principles, supra, § 6.03, Reporter’s 

Notes, cmt. b (“Although Hewitt is not entirely isolated [citation] its approach is 

distinctly a minority view, and has been explicitly rejected by many courts ***.”).

Hewitt must be overruled because it is outmoded and out of touch with 

contemporary experience and opinions on cohabitation. 

¶ 108 Additionally, Hewitt must be overruled because the legal landscape that formed 

the background for our decision has changed significantly. The Hewitt court was 

puzzled by the impact that recognizing claims arising from the relationships of 

unmarried cohabitants would have on society. Hewitt, 77 Ill. 2d at 58. Specifically, 

the court queried, “[W]hat of the children born of such relationships? What are 

their support and inheritance rights and by what standards are custody questions 

resolved? What of the sociological and psychological effects upon them of that 

type of environment?” Id. That court was the same one that decided Jarrett v. 

Jarrett, 78 Ill. 2d 337, 345 (1979), which affirmed a trial court ruling transferring 

custody of three children to their father because their mother was cohabiting with 

another man. Four years later in In re Marriage of Thompson, 96 Ill. 2d 67, 78 

(1983), the court changed course and held that, in Illinois, there is no “conclusive 

presumption that, because a custodial parent cohabits with a member of the 

opposite sex, the child is harmed.” See also In re Marriage of R.S., 286 Ill. App. 3d 

1046, 1055 (1996) (“the clear import of the Thompson opinion is that Illinois courts 

should not adopt absolute rules that require a change in custody based on conduct 
- 36 - 

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

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

¶ 109 As for support and inheritance, the Probate Act of 1975 was amended in 1978 to 

extend intestate inheritance rights to children of unmarried parents. See Pub. Act 

80-1429 (eff. Sept. 12, 1978) (codified at 755 ILCS 5/2-2 (West 2010)). Similarly, 

the Illinois Pension Code was amended in 1985 to extend survivor benefits to such 

children. See Pub. Act 84-1028 (eff. Nov. 18, 1995) (codified at 40 ILCS 5/1-104.2 

(West 2010)). And the Illinois Parentage Act of 1984, which also went into effect in 

1985, specifically provided that “[t]he parent and child relationship, including 

support obligations, extends equally to every child and to every parent, regardless 

of the marital status of the parents.” Pub. Act 83-1372 (eff. July 1, 1985) (codified 

at 750 ILCS 45/3 (West 2010)). That statute has since been repealed and replaced 

by the Illinois Parentage Act of 2015. 

¶ 110 To bolster its holding, Hewitt relied upon Illinois’s rejection of so-called 

no-fault divorce. See Hewitt, 77 Ill. 2d at 63 (citing Ill. Rev. Stat. 1977, ch. 40, 

¶ 401). The court took the legislature’s decision to retain fault grounds for divorce 

as a “significantly stronger promarriage policy” that reaffirmed “the traditional 

doctrine that marriage is a civil contract between three parties[: ]the husband, the 

wife[,] and the State” and prevented “the marriage relation from becoming in effect 

a private contract terminable at will.” Hewitt, 77 Ill. 2d at 63-64. 

¶ 111 The Marriage and Dissolution of Marriage Act was amended in 1984, and since 

then Illinois has had no-fault divorce. See 750 ILCS 5/401(a)(2) (West 2010); see 

also Karbin v. Karbin, 2012 IL 112815, ¶ 39 (stating that the no-fault divorce 

provisions of the Act signaled a shift in policy that “reflected a dissatisfaction with 

the traditional requirements of proving fault to obtain a divorce” and “allowed 

people to part with dignity” (internal quotation marks omitted)). And the Illinois 

Uniform Premarital Agreement Act was adopted in 1990. See 750 ILCS 10/1 

et seq. (West 2010); see also In re Marriage of Barnes, 324 Ill. App. 3d 514, 517 

(2001) (indicating that, historically, premarital agreements that limited spousal 

maintenance or distributed property upon divorce were invalidated on public policy 

grounds because they were said to be conducive to divorce, but it is now “clear that 

there is no longer any general public policy opposed to agreements contemplating 

divorce”). Those statutes answer the Hewitt court’s concern about “the marriage 

relation *** becoming in effect a private contract terminable at will.” Hewitt, 77 Ill. 

2d at 64. 
- 37 - 

¶ 112 Notably, Hewitt’s paternalistic reference to only opposite-gender marriages has 

been superseded by the Religious Freedom and Marriage Fairness Act (Pub. Act 

98-597 (eff. June 1, 2014) (adding, inter alia, 750 ILCS 80/5 (West Supp. 2013))), 

which provides “same-sex and different-sex couples and their children equal access 

to the status, benefits, protections, rights, and responsibilities of civil marriage.”

The legislature, in an earlier statute, extended the rights and burdens of marriage to 

domestic partners who enter civil unions (see 750 ILCS 75/1 et seq. (West 2010)), 

and many public and private employers provide benefits to domestic partners who 

cohabit. 

¶ 113 The majority, however, refuses to give these statutory amendments much 

weight. According to the majority, “[t]hese post-Hewitt amendments demonstrate 

that the legislature knows how to alter family-related statutes and does not hesitate 

to do so when and if it believes public policy so requires.” Supra ¶ 76. The 

implication is that, in light of the many statutory changes since Hewitt, the 

legislature’s silence on the rights of cohabitants somehow indicates its rejection of 

claims like those brought by Brewer. I interpret that silence differently. Simply 

because the legislature has taken some action in the domestic relations arena does 

not mean that this court cannot act as well. See In re Parentage of M.J., 203 Ill. 2d 

526, 540 (2003). The legislature is undoubtedly well equipped to declare public 

policy on domestic relations. Hewitt, 77 Ill. 2d at 61, 66; supra ¶ 77. Courts, 

however, are better equipped than the legislature to help parties divide joint assets 

using familiar legal and equitable rules. See Watts, 405 N.W.2d at 311 (“Courts 

have traditionally developed principles of contract and property law through the 

case-by-case method of the common law. While ultimately the legislature may 

resolve the problems raised by unmarried cohabiting parties, we are not persuaded 

that the court should refrain from resolving such disputes until the legislature gives 

us direction.”). 

¶ 114 For more than a century and a half, Illinois courts have adjudicated property 

disputes between family members. See, e.g., Miller v. Miller, 16 Ill. 296, 298-99 

(1855); Collar v. Patterson, 137 Ill. 403, 407 (1891); Heffron v. Brown, 155 Ill. 

322, 326 (1895); Finch v. Green, 225 Ill. 304, 312 (1907); Legate v. Legate, 249 Ill. 

359, 364 (1911). Generally, courts have held that, when people live together in a 

family setting, contributions between them are presumed gratuitous and not 

compensable absent an express or implied contract. See In re Estate of Milborn, 

122 Ill. App. 3d 688, 692 (1984) (“The rule rests on the idea of mutual dependence 

between those who are members of one immediate family ***.” (Emphasis 
- 38 - 

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

claim are nothing new. 

¶ 115 More importantly, claims like Brewer’s claim do not implicate the Marriage 

and Dissolution of Marriage Act and, thus, do not undermine the public policy of 

Illinois, as expressed in the prohibition of common-law marriage, that individuals 

themselves cannot create marriage-like benefits. See supra ¶ 61. Although the 

parties had what the majority terms a “marriage-like relationship” (supra ¶ 1), 

Brewer does not seek “marriage-like benefits” (supra ¶ 61) or “marriage-like 

rights” (supra ¶ 77) in count III. She simply asks to bring the same common-law 

claims available to other people. She should be allowed to do so. The fact that 

Brewer and Blumenthal were once domestic partners should be no impediment. 

See Mason, 476 A.2d at 666 (“the position that the courts will not participate in 

resolving the disputes in accordance with general principles of law and, thus, will 

leave the parties to their own devices, to be unrealistic and unresponsive to social 

need”); Salzman v. Bachrach, 996 P.2d 1263, 1268-69 (Colo. 2000) (en banc) 

(“cohabitation and sexual relations alone do not suspend contract and equity 

principles”). Admittedly, such claims may be difficult to plead and prove (see 

Marsha Garrison, Nonmarital Cohabitation: Social Revolution and Legal 

Regulation, 42 Fam. L.Q. 309, 321 (2008)), but that is a matter for the trial court.

¶ 116 Hewitt’s flaws, both linguistic and legal, have become more apparent with time. 

Our holding there is a court-made rule that this court should overrule. I believe that 

count III of Brewer’s amended complaint should be remanded for the trial court to 

determine whether she has pleaded a cognizable cause of action. For these reasons, 

I dissent.

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