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Why Does Illinois Not Recognize Common Law Marriage?

If you live in Illinois state it is pretty likely you have no idea what a common law marriage is. Most states, including Illinois and except for 11 states give or take, don’t recognize common law marriage as legally binding in any form (with a few exceptions). So, what is common law marriage?

What Is Common Law Marriage?

Common law marriage is a relationship that is recognized as a marriage by the state without the need for an official marriage license. In states that recognize common law marriages, the individuals involved will typically identify themselves as married. Most couples enter into common law marriage by living together for long periods, taking each other’s last names, filing joint tax returns and other common practices found in marriages. If a couple decides to enter into a common law marriage, in order to separate they must receive a legal divorce.

However, most states, such as Illinois, do not recognize common law marriage. Even if you live with someone for years at a time, and take their last name, if you haven’t gotten a marriage license your marriage isn’t recognized by law. This distinction means that your relationship is not held to any specific standard by law and if you do break up, you or your spouse cannot sue for marital rights. However, if you enter into a common law marriage in a state which recognizes these, then choose to move to a state that doesn’t, your marriage is still valid in that state.

What Are The Benefits Of Common Law Marriage?

The main reason couples would want to enter into a common law marriage, is they receive the same marital benefits (healthcare, division of property, spousal support, etc.) as legally marries couple do, without the process of being formally married.

Technically speaking, there is no difference between a common law marriage and a legal marriage in states that recognize common law marriages, except for the marriage certificate and the marriage ceremony.

Couples, who enter into common law marriages, usually do so because they are fearful of the financial costs of a wedding, and turned off by the usual formalities and the actual time and legal processes that getting married entails. However, common law marriages become complicated because there is no official documentation that the couple is married. This technicality means the couple must consistently prove that they have entered into a common law marriage when they want to receive the marital benefits.

What States Recognize Common Law Marriage?

Many states consider common law marriage (Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah) however, many states allow common law marriage but with certain limitations. These states include Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania. The states that do not recognize all types of common law marriage set a specific limitation on the dates the marriage was created and the types of benefits it covers. For example, in Ohio, the common law marriage is only recognized if created before October 10th, 1991. Additionally, in New Hampshire, common law marriage is only considered in inheritance disputes.

Common law marriage has been around since the 19th century, and arguably during the centuries before that. As time has progressed, states have slowly started to repeal the legality of common law marriages; the most recent state to do so was Alabama, in 2016. Ultimately, most states have appealed or limited the right to common law marriage leaving only the nine states mentioned above.

Why Does Illinois Not Have Common Law Marriage?

Over 30 years ago, in the case of Hewitt v. Hewitt, the Illinois Supreme Court stated that common law marriages violated longstanding Illinois public policy of recognizing any agreement for which consideration is “future illicit cohabitation.” This policy was meant to discourage “cohabitation between unmarried parties and disfavor non-marital children.”

Hewitt proved to be a landmark case, frequently cited by the appellate courts in the years to come. Hewitt has been used to support that position: that unmarried cohabitants cannot be granted mutual property rights, thereby barring the admission of evidence concerning premarital cohabitation. In re Marriage of Goldstein, 97 Ill. App. 3d 1023, 1028 (Ill. App. Ct. 1st Dist. 1981); that knowingly unmarried cohabitants do not have legal status under Illinois law. Matter of Mac Harg, 120 Ill. App. 3d 753, 755 (Ill. App. Ct. 1st Dist. 1983); that ex-spouses may not be compensated for contributions made to a spouse’s business prior to the marriage when said claim was brought under the IMDMA. Crouch v. Crouch, 88 Ill. App. 3d 426, 431 (Ill. App. Ct. 3d Dist. 1980); that unmarried partners do not have the right to sue for loss of consortium. Medley v. Strong, 200 Ill. App. 3d 488, 491 (Ill. App. Ct. 1st Dist. 1990); that plaintiff had no cause of action where she sued for violation of an oral contract to place a home in joint tenancy and share the equity in the property upon the dissolution of the relationship. Ayala v. Fox, 206 Ill. App. 3d 538, 542 (Ill. App. Ct. 2d Dist. 1990); that petitioner did not have a right to seek repayment or a distribution from financial contributions made prior to the date of marriage. In re Marriage of Hughes, 160 Ill. App. 3d 680, 685-86 (Ill. App. Ct. 5th Dist. 1987); that plaintiff, who cohabitated with defendant for 24 years, raised a child together, and became a homemaker to support defendant’s career, had no equitable interest in the parties’ home or property and had no relief upon being forced from the parties’ home.  Costa v. Oliven, 365 Ill. App. 3d 244, 248 (Ill. App. Ct. 2d Dist. 2006).

Costa v. Oliven is perhaps the most troubling of all cases to review Hewitt’s holding. Costa provides a relatively recent review of Hewitt’s public policy considerations.

In Costa, the court stated:

Plaintiff argues that Hewitt’s rationale “should no longer be applied as a blanket rule in every set of circumstances involving unmarried cohabitants” and advances three reasons in support of his argument. First, plaintiff argues that “the public policy at the time of Hewitt [sic] decision is susceptible to different but equally compelling interpretations.” Second, plaintiff argues that there has been “subsequent legislative activity and changes in social and judicial attitudes.” Third, plaintiff argues that “it is clear that the holding of Hewitt leads to harsh and unjust results tending to cause one of the cohabitants to potentially become dependent on public aid, and thus, cannot be considered good public policy.” Similar arguments were advanced and rejected in Hewitt: “The real thrust of plaintiff’s argument here is that we should abandon the rule of illegality because of certain changes in societal norms and attitudes. It is urged the social mores have changed radically in recent years, rendering this principle of law archaic. It is said that because there are so many unmarried cohabitants today the courts must confer a legal status on such relationships.” Hewitt, 77 Ill.2d at 60, 31 Ill.Dec. 827, 394 N.E.2d 1204. As the Hewitt court stated, “ ‘[T]hese 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.’ ” Hewitt, 77 Ill.2d at 66, 31 Ill.Dec. 827, 394 N.E.2d 1204, quoting Mogged v. Mogged, 55 Ill.2d 221, 225, 302 N.E.2d 293 (1973). Costa v. Oliven, 365 Ill. App. 3d 244, 247-48 (Ill. App. Ct. 2d Dist. 2006).

 

There have been some limitations placed on Hewitt. Specifically, Hewitt has not been extended where the plaintiff sought repayment for vehicles titled in her boyfriend’s name, but paid for entirely by her, as the agreement was not “based upon or intimately related to the cohabitation of the parties.” Spafford v. Coats, 118 Ill. App. 3d 566, 572 (Ill. App. Ct. 2d Dist. 1983). Hewitt is also limited by the “home rule unit” provision of the State constitution, which has been used to permit cities to extend benefits to unmarried, same-sex couples port. Crawford v. City of Chicago, 304 Ill. App. 3d 818, 830, (Ill. App. Ct. 1st Dist. 1999)

As recently as 2016, in the case of Blumenthal v. Brewer, the Illinois Supreme Court noted that while attitudes towards unmarried relationships have seemingly changed, Illinois law and policy had not. The Court reaffirmed its holding that unmarried couples could not form joint property rights, nor seek spousal support, simply by way of cohabitation.

However, this time around the justices’ reasoning was slightly different. They argued that because all people have the right to marry after the legalization of same-sex marriage, they do not believe that they need to “grant protections and benefits” to couples who choose not to marry.

Takeaways

Consult a lawyer. Private agreements between unmarried but cohabitating individuals must be reduced to an enforceable and clear contract. There is no real replacement for marriage in Illinois, but there are safety measures that can be enacted.

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