I recently joined the faculty at the SMU Dedman School of Law. It’s an amazing place, with one small, but important flaw: none of the clocks seem to work. But I’m new, so I keep looking at the broken clocks and then realizing I have no idea what time it is. One might have the same reaction when reading a recent opinion from the Illinois Supreme Court, in which it reaffirmed an opinion on the rights of cohabitants from almost forty years ago, completely oblivious to the fact that family law and family life have changed immeasurably since then.
In a 1979 case, Hewitt v. Hewitt, the Illinois Supreme Court held that cohabitation could not give rise to any enforceable property-sharing rights because the alternative would undermine the state’s interest in marriage. This was a curious ruling at the time—three years after the California Supreme Court had said the opposite in the famous Marvin v. Marvin case and at the end of the decade in which cohabitation had come out of the closet in a somewhat spectacular fashion. The Hewitt ruling became a true outlier as most states around the country began to recognize at least some property-sharing rights for cohabiting couples.
In 2016, the Illinois Supreme Court was asked to overrule Hewitt and to enforce property-sharing between a same-sex couple with one primary earner and one dependent partner. Now faced with a world in which a majority of adults will have at least one cohabiting relationship during their lifetimes, and in which forty percent of children are born to unmarried couples, the court refused to budge. In Blumenthal v. Brewer, the court reaffirmed Hewitt and applied it to allow the primary earner to walk away with all the spoils of the relationship. The State of Illinois, the court held, still has a public policy favoring marriage. And that policy, the court believes, is best served by withholding protections from nonmarital families, regardless of the unfair consequences that flow from that approach.
Cohabitation in America: A History
One of the most significant changes to family life in the last century is the rise and acceptance of nonmarital cohabitation. Once a rare and secreted practice, couples began to “shack up” in large numbers in the 1970s due to changing sexual mores and the advancement of women’s rights. This was a stark change from the past in which cohabitation was not only the subject of social disapproval, but was also a criminal act in many states.
The criminal bans on cohabitation, which flourished in the anti-vice climate of the early twentieth century, remained on the books throughout the twentieth century in some jurisdictions, but ceased to be enforced in any significant way beginning in the 1950s. Eventually, the bans would be legally unenforceable, after the Supreme Court’s 2003 ruling in Lawrence v. Texas, in which it held that a ban on sodomy between consenting adults of the same sex violated the Due Process Clause. The Court wrote that a state’s belief that a practice is immoral is insufficient justification to infringe the fundamental rights regarding intimate relationships, reproduction, and family life. This spelled the end for a variety of sex laws, but certainly those that made it a crime for an unmarried person to have sex (fornication) or for a consenting adult couple to live together in a sexual relationship (cohabitation).
As the criminal bans fell into a kind of desuetude mid-century, cohabiting couples still faced sometimes severe civil penalties for their lifestyle choice. People lost custody of children because they cohabited with a nonmarital partner; they got fired; they were evicted; they lost alimony payments; and so on. But, pushed by the same changing mores, these civil penalties also lessened as the century wore on. In 1970, only 523,000 couples were cohabiting; by 2000, there had been a tenfold increase, to 5.5 million. Most people will cohabit at some point, either as a precursor to or substitute for marriage. But even though cohabitation is now a common life stage, it is usually a short one. Most cohabitants marry or split up within five years; the median length of a cohabiting relationship is around two years. Many of these cohabitants are raising children, either ones born during the cohabitation, or ones brought to the relationship by one partner.
As cohabitation became more common and more accepted (these are related, but separate developments), the conversation shifted from whether cohabitation was immoral or illegal to whether cohabitation should be recognized as an alternate to marriage and whether cohabitants ought to have any economic rights arising out of the relationship. The more cohabitants started to act like married couples—intermingling their finances, dividing time and labor between wage-earning and domestic work, co-parenting children—the more likely they are to seek or need marriage-like rights when the relationships dissolve. Why?
When two people marry, they often allocate time and labor in ways that lead one spouse to accumulate money and property, which is then used to support the other spouse, who has specialized in non-economic contributions to the marriage such as childcare and housework. Beginning in the 1970s, states realized that it was terribly unfair to allow title—legal ownership of property—to dictate who ended up with what when the marriage ended. The breadwinner would get everything; the dependent homemaker would get nothing. States thus enacted equitable distribution statutes to give divorce courts the authority to redistribute property based on a variety of principles—contribution, need, the partnership theory of marriage, earning capacity, and so on. Equitable distribution compensates for the choices within marriage that lead to one spouse’s dependency. And the “elective share” serves the same purpose when the monied spouse dies. (Spouses in community property states are also protected, but under a different set of rules that divide ownership of earnings at the moment of acquisition rather than upon divorce or death.)
Property-Sharing Rights of Cohabitants: Marvin v. Marvin and Hewitt v. Hewitt
The question raised in Hewitt, the 1979 Illinois cohabitation case, was whether a woman, who had acted very much like a wife, could make any claim to her male partner’s assets when they ended their relationship. They had lived together for fifteen years, conceived and raised three children, and worked together to develop his dental practice. Robert was a successful dentist who had relied on her support, including money she borrowed from her parents, while he went to school and set up his practice. When they broke up, Victoria sought an order to share some of her partner’s assets. If they had been married, Victoria would have been entitled to a significant proportion of Robert’s assets, maybe more than half.
But the Illinois Supreme Court did not bite. It refused to see the problem before it as a simple question of contract law or a question of fairness. The question, rather, was whether granting Victoria Hewitt rights against Robert would “weaken marriage as the foundation of our family-based society” by encouraging cohabitation. Even though the court did not find Victoria’s claims “totally devoid of merit,” they went against public policy, and thus could not validated.
The ruling meant that Victoria could not claim status-based rights, such as equitable distribution and alimony, an understandable consequence of deciding not to marry. But it also meant that she could not lay claim to any equitable or contractual rights arising out of the relationship. Thus, she thus had even fewer rights than a single person, who could enter into enforceable property-sharing arrangements with a friend or family member. All this in the name of protecting marriage—and in reducing any incentive for people to just live together. A cohabiting couple was doomed to a life without access to even the basic civil rights—and the big winner in this scenario is the one in whose name the property lies.
Hewitt was an outlier almost from the beginning. Three years earlier, the California Supreme Court had been the first to recognize a claim of “palimony”—the buzz word for alimony between “pals”. The case received publicity in part because it marked new territory, but more because the defendant was a famous Hollywood actor—Lee Marvin. Michelle Triola had given up her singing career while she lived with Marvin, devoting herself to him as, in her words, “a companion, homemaker, housekeeper and cook.” The bargain, she claimed, was that he would support her for life. All the money was in his name, and she asked the court to give her a share.
Although in the end, Triola received nothing, the California court recognized the enforceability of contracts between cohabitants to share property, whether express or implied, and the possibility of restitution when one party had been unjustly enriched by the services of the other. The big leap in Marvin was rejection of the idea that all contracts between sexual partners were against public policy because they were based on “meretricious” consideration (i.e., sex). The court recognized that cohabitants could be in a sexual relationship and yet enter into an arrangement that was a crass money-for-sex exchange. But what the court really recognized was that the “mores of the society” have “radically” changed, and a “standard based on alleged moral considerations that have apparently been so widely abandoned by so many” is no longer appropriate.
In the years that followed, courts in most states held that cohabiting partners could enter into enforceable agreement with respect to property or finances. The scope of permissible agreements varies by state, but so-called Marvin rights are commonplace. In more recent years, some states have moved to a status-based model for protecting cohabitants, in which courts have held that property-sharing rights can arise from the nature of the relationship itself—a model that treats cohabitation as a variant of marriage.
Illinois: Blumenthal v. Brewer and the Broken Clock
But through all these vast legal and social changes, the Illinois Supreme Court sees the same, simplistic problem: if we grant rights to cohabitants, won’t people choose to cohabit rather than marry? The easy answer to that is that family law incentives are hard to predict because people seldom know or understand the legal backdrop against which they form families; and even when they do know, they act from the heart rather than the head. But even if the incentives had a direct line to the minds of potential cohabitants—only some of them would knowingly choose cohabitation over marriage. Women, who are more likely to perform non-economic work within the family, would have an incentive to marry in order to gain the protections of equitable distribution and alimony. But men have the opposite incentive—to avoid marriage, while not avoiding the benefits of marriage and family life, in order to secure sole ownership of wages and property acquired during the relationship. So at best the Hewitt rule is a one-sided incentive; at worst, it’s a rule that disproportionately disadvantages women.
In Blumenthal, two women, a doctor and a judge, engaged in a long-term relationship and raised children together. When the relationship dissolved, Brewer sought to force property-sharing, as Blumenthal was leaving the relationship with substantial equity in a house and a valuable medical practice.
Although the intermediate appellate court had ruled for Blumenthal, holding that Hewitt was outdated and should be overruled, the Illinois Supreme Court held to the contrary. Its ruling turned on these points: (1) the state had abolished common-law marriage by statute over one hundred years ago; (2) the reasoning behind Hewitt—that cohabitant property-sharing is akin to permitting common-law marriage despite the statutory abolition of it—is still valid; and (3) the legislature intended marriage to be the only legally protected family relationship.
As the court concluded, “[o]ur 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.”
The court invited the legislature to disagree by granting express, statutory protections for cohabitants. But legislative intervention should not be necessary, since what the court did in Hewitt was to take away otherwise-available contractual rights. All it had to do in this case was lift the ban on enforceable agreements between adults in an intimate relationship. The economic rights of cohabitants across the country have, with relatively few exceptions, come about through judicial opinions rather than legislative enactments.
As a discouraging final note, the Blumenthal court wrote that the Supreme Court’s recognition of marriage equality in Obergefell v. Hodges makes it even more reasonable for the State of Illinois to prefer marriage over all other relationship forms. After all, now everyone can marry. That the right to marry would become an obligation to marry has been a caution that some scholars, including Nancy Polikoff and Katharine Franke, have warned about. This is one more ruling (see others here) to suggest that they might be right.
Perhaps the only upside of this ruling is that I do not have to rewrite my cohabitation notes when I teach family law. I can still draw the line showing the spectrum from no rights (Illinois) to hard-to-enforce, but real Marvin rights (California and lots of other states) to status-based rights (Washington, among a handful of states), although now I will stop describing Hewitt as an historical relic and describe Blumenthal as a misguided, but current ruling. But I would be willing to change my notes if Illinois would be willing to join the rest of the country in recognizing that family life is complicated and that all families are worthy of recognition and respect. My law school has promised to fix the broken clocks; can the Illinois legislature promise the same?