Victoria L. Hewitt v. Robert M. Hewitt, 77 Ill.2d 49 (1979)

CASE: Long-time companion of man sues him for half the property they accumulated during their 15 years of living together as husband and wife.

FACTS: Plaintiff and defendant met one another in Iowa in 1960. After she became pregnant, the agreed to hold themselves out to the public as husband and wife, telling their parents that they were married. Defendant told plaintiff that he would "share his life, his future, his earnings and his property" with her and that no ceremony was necessary. This apparently took place in Illinois, a state in which the Legislature had outlawed common-law marriage in 1905. They lived together as husband and wife in an unmarried, family-like relationship, having two additional children together, until 1975, when they separated. In reliance on this promise, the plaintiff devoted herself to helping her husband obtain a professional degree and open a practice of pedodontia (obtaining financial assistance from her parents for the purpose), assisted him in his career (receiving paychecks which she deposited in a common fund) and provided social services to enhance his social and business reputation. Plaintiff initially filed for divorce, a complaint which was dismissed once the court determined that there had been neither a ceremonial or common-law marriage. Her amended complaint, stating a cause of action on an express oral contract, was also dismissed, the court saying that Illinois law and public policy require such claims to be based on a valid marriage. The appellate court reversed, stating that because the parties had outwardly lived a conventional married life, plaintiff's conduct had not "so affronted public policy that she should be denied any and all relief." Plaintiff appealed.

PLAINTIFF ARGUES: That she and the defendant had an agreement which included consideration independent of sexual services, that she relied on his promise to suport her and that she put her own ambitions on hold in order to tend to his ambitions.

DEFENDANT ARGUES: That they were never legally married, that consideration included sexual services, that the agreement is not enforceable, that the plaintiff is not entitled to half of the profits and properties accumulated by the parties during the 15 years of their psuedo marriage.

COURT SAYS: Judgment reversed (finding for the defendant).

HOLDING: Plaintiff's claims that she be entitled to half of the property accumulated by she and the defendant during their 15-year cohabitation are 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 enforceable property rights to knowingly unmarried cohabitants.

RATIONALE:

• Ruling for the plaintiff would judicially impose upon the state the insitution of common-law marriage, an institution that was legislatively abolished in Iowa in 1905
• Deciding whether unmarried cohabitants should be able to engage in arrangements of this sort (arrangements that essentially constitute common-law marriage) is a question best left to the legislature.
• Permitting this sort of informal relationship would discourage a couple from getting married, because it would permit the couples to make arrangements that would not be available to marital partners (contracting around child support, for instance). Thus, such an arrangement would run counter to public policy of strengthening and preserving the integrity of marriage.

COMMENTARY: While the reasoning of the Supreme Court is sound (relying on public policy, noting that a ruling for the plaintiff would result reestablishing a system of common-law marriage, saying such decisions are best left to the Legislature), the outcome smells. The court is punishing her to the tune of half the profits and properties the parties accumulated in their 15 years together for not going to the courthouse and saying "I do" before a Justice of the Peace. A ruling like this would certainly fall the hardest on women who, like Virginia Hewitt, have devoted their lives to the needs of their husbands and children. Such a ruling devalues the work such women do, and bolsters the feminist argument that the doctine of the common-law marriage should be expanded. Of course, the court could have fashioned a narrow rule to give women in Virginia Hewitt's position relief without instituting common law marriage (it could have ignored the fact that the appellate court narrow exception which would provide relief to those who had been living in a "conventional family relationship" and imposed that test for the purposes of Illinois law, for example). Or it could have simply reinstituted the doctrine of common law marriage and applied in retroactively to the defendant (as is Orr and Liberta.)

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