Jim Dey: State high court upholds 1979 ruling in uncommon case

Last week, the Illinois Supreme Court appeared to break some legal ground by refusing to break new legal ground.

It upheld its 1979 Champaign County-based ruling in a marriage case by reaffirming the principle that unmarried couples aren't entitled to make marriage-based claims when they break up.

The case involved a wealthy same-sex Cook County couple — one a judge and the other a physician — who split up after living together for more than 20 years.

The couple reached a court-approved settlement of ownership of their residence and jointly owned personal property. But the judge wanted either income from or part ownership of the doctor's medical practice as a consequence of their purported common-law marriage.

The high court — by a 5-2 majority — held that Illinois' longstanding policy of refusing to recognize common-law marriages required it to reject Judge Eileen Brewer's marital claim against Dr. Jane Blumenthal.

Writing for the court's majority, Justice Lloyd Karmeier said that unmarried couples "can enter an intimate relationship, but the relationship itself cannot form the basis to bring common-law marriage claims."

Karmeier noted that Illinois law has refused to recognize common-law marriage since 1906. Since then, legislators have made many changes in marital law, including legalizing same-sex marriage, while continuing to refuse to recognize common-law marriage.

Whatever legislators decide to do in the future about common-law marriage, Karmeier said, the court ought not write social legislation by itself.

"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," he said.

Writing in dissent, an angry Justice Mary Ann Theis noted other states recognize common-law marriage, calling Illinois a "clear outlier on the issue."

Theis concluded her opinion with these words, "For these reasons, I dissent."

Theis omitted the word "respectfully" from her concluding phrase, an absence that in the judicial world expresses her anger over the majority's ruling.

The high court based its ruling in this case on its precedent in the 1979 Hewitt v. Hewitt decision, which Theis said "must be overruled because it is outmoded and out of touch with contemporary experience and opinions on cohabitation."

The Hewitt case that dominated both the majority and minority opinions involved a former Urbana dentist, Robert Hewitt; his partner, Victoria Hewitt; and the three children they had together.

When the unmarried couple split up in the mid-1970s, Victoria Hewitt sought a property settlement from Robert Hewitt based on marital claims.

A who's who of the local legal community participated in the case.

Urbana lawyer Robert Auler represented Robert Hewitt while the late Burt Greaves represented Victoria Hewitt. Circuit Judge Harold Jensen, now retired, dismissed Victoria Hewitt's marital claims because the couple never married.

The state appellate court overturned Jensen, temporarily creating California-style palimony law here before the Illinois Supreme Court unanimously overturned the appellate court's decision.

The Hewitt case created big news at the time, not only in Champaign County but statewide.

At one point, two of Robert Hewitt's three daughters picketed his dental office with signs that read "Father of the Year?" and "Dad: How Could You Do This?"

The appellate-court decision in Blumenthal v. Brewer that the high court overruled would have, by judicial fiat, created common-law marriage in Illinois. Under that scenario, two unmarried people are considered legally married if they co-habitate together for a certain amount of time.

The high court criticized the 1st District Appellate Court for overstepping its boundaries by trying to legalize common-law marriage. The high court said its action was "predicated on the exercise of jurisdiction it did not possess and the repudiation of legal precedent it had no authority to overrule."

A lawyer with the National Center for Lesbian Rights described the ruling as a "devastating setback for unmarried couples." The ruling represents not so much a setback — because unmarried couples are no worse off now than they were before — but it does fail to create common-law marriage. Further, the court did not ban the concept. Instead, it said the issue is "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 ruling as it did, the high court said that unmarried individuals may make "express or implied contracts with one another" and that they "will be enforceable if they are not based on a relationship indistinguishable from marriage."

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.