Blumenthal v. Brewer
24 N.E.3d 168
Ill. App. Ct.2015Background
- Jane Blumenthal and Eileen Brewer were long-term same-sex domestic partners (≈26 years), co-parented three children, commingled assets, and jointly purchased a Chicago home in 1999.
- Brewer stayed home for portions of the relationship and later worked public-sector hours; Blumenthal was the primary breadwinner and invested in a medical practice; the couple registered as domestic partners with Cook County and completed cross-adoptions in 2002.
- After Blumenthal left the home in 2008, Brewer became solely responsible for the Kimbark property’s mortgage and upkeep and alleges she paid >$215,000 and contributed significant unpaid labor while Blumenthal retained greater net worth.
- Brewer filed counterclaims seeking remedies including a constructive trust, partition with adjustments for payments and labor (quantum meruit), and restitution/unjust enrichment tied to contributions toward Blumenthal’s medical-practice investment.
- The trial court dismissed Brewer’s counterclaims under Hewitt v. Hewitt (1979), which historically barred enforcement of property/contract claims between unmarried cohabitants; Brewer appealed arguing legislative and doctrinal changes implicitly overruled Hewitt.
- The appellate court vacated the dismissal, held Hewitt no longer controls given intervening legislative and doctrinal developments, and remanded for the trial court to consider factual sufficiency and other defenses.
Issues
| Issue | Brewer's Argument | Blumenthal's Argument | Held |
|---|---|---|---|
| Whether Hewitt bars Brewer’s common-law/unjust-enrichment/quantum-meruit claims between unmarried domestic partners | Hewitt has been implicitly overruled by legislative and doctrinal changes; unmarried partners should be permitted to bring restitution/contract-based claims | Hewitt remains good law because it enforces the statutory abolition of common-law marriage and courts should not create marriage-like rights without the legislature | Court: Hewitt’s categorical bar no longer controls; remanded to evaluate pleadings on their merits |
| Whether intervening legislation and social/legal developments altered public policy relied on in Hewitt | Numerous statutes and legal developments (repeal of cohabitation criminalization, parentage/probate changes, no-fault divorce, civil unions, constitutional privacy decisions) demonstrate a changed public policy | Hewitt reflects the legislature’s continued ban on common-law marriage; judicial change would improperly resurrect common-law marriage | Court: Legislative and doctrinal changes show public policy has shifted; allowing common-law claims does not resurrect common-law marriage |
| Whether allowing Brewer’s claims would conflict with abolition of common-law marriage or improperly create marital status retroactively | Brewer seeks ordinary common-law remedies (unjust enrichment, constructive trust), not a new marital status; remedies are consistent with modern law allowing such claims without recognizing common-law marriage | Allowing the claims would effectively confer marriage-like status and violate the statutory ban on common-law marriage | Court: Recognizing common-law restitution/contract claims does not equate to creating common-law marriage and is permissible |
| Whether Brewer’s pleading was factually sufficient to state unjust-enrichment/quantum-meruit/constructive-trust claims | Allegations of commingling, shared expectations, unpaid services, sole mortgage payments and significant expenditures state plausible claims | Trial court below did not rule on factual sufficiency; Blumenthal argued pleading defects | Court: Dismissal based solely on Hewitt vacated; trial court must address factual sufficiency on remand |
Key Cases Cited
- Hewitt v. Hewitt, 77 Ill. 2d 49 (Ill. 1979) (established categorical bar on enforcing property/contract claims between unmarried cohabitants)
- Ayala v. Fox, 206 Ill. App. 3d 538 (Ill. App. Ct. 1990) (applied Hewitt to deny equitable interest to unmarried cohabitant)
- Costa v. Oliven, 365 Ill. App. 3d 244 (Ill. App. Ct. 2006) (affirmed dismissal of cohabitant’s property claims under Hewitt principle)
- Marvin v. Marvin, 557 P.2d 106 (Cal. 1976) (permitting enforcement of agreements between cohabitants except where consideration is exclusively sexual)
- In re Marriage of Thompson, 96 Ill. 2d 67 (Ill. 1983) (rejected presumption that cohabitation by a custodial parent is harmful to children)