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In Blumenthal v. Brewer, the Appellate Court of Illinois, First District, recently held that a domestic partner has the right to bring a claim of implied contract based on non-marital cohabitation against the other domestic partner. 2014 IL App (1st) 132250. In reaching its decision, the Blumenthal court reasoned that the longstanding Illinois Supreme Court decision of Hewitt v. Hewitt, 77 Ill.2d 49 (1979), has been implicitly overruled by subsequent legislation favorable to domestic partnerships. In Hewitt, the Supreme Court rejected on public policy grounds a woman’s suit to divide assets she accumulated with a man during a 15 year relationship in which they lived together, had three children together, but never married. Hewitt held that Illinois courts do not recognize property claims between unmarried couples.

Claims between Unmarried Couples Approved by Blumenthal

In Blumenthal, Blumenthal, a Gold Coast obstetrician and gynecologist, brought a suit to partition a Chicago home that she owned with Brewer, her former domestic partner of 26 years. Brewer, a Circuit Court of Cook County judge, counterclaimed for various remedies, including, but not limited to, imposition of a constructive trust over the Chicago property to prevent unjust enrichment arising from Blumenthal’s greater net worth at the end of the domestic partnership. Brewer also sought imposition of a constructive trust over the annual net earnings or the sale of Blumenthal’s share of her medical practice to prevent unjust enrichment, or in the alternative, restitution of the funds that Blumenthal allegedly took from the couple’s joint bank account to buy into the medical practice.

The circuit court granted Blumenthal’s motion to dismiss finding that, based on the parties domestic relationship, Brewer’s counterclaims were categorically barred by Hewitt. In its ruling on the motion to dismiss, the circuit court did not consider the factual sufficiency of Brewer’s counterclaims. Brewer appealed the circuit court’s order dismissing her claims. After a lengthy discussion of the public policy and legislative changes that have occurred since the Hewitt decision, the appellate court vacated the dismissal, in so far as it was based on Hewitt, and remanded the case back to the circuit court with directions to consider the merits of Blumenthal’s motion to dismiss. The appellate court held that Hewitt no longer acts as a bar to claims brought between unmarried couples.

Blumenthal‘s Reach

Although still remains to be seen the reach of the Blumenthal decision, it is clear that the Illinois judiciary has acknowledged the changing landscape of non-marital and family relationships and has opened the door to claims between unmarried couples based on common law contract theories.


Update: On March 25, 2015, the Illinois Supreme Court allowed a petition for leave to appeal the appellate court’s decision in Blumenthal, as is indicated on the leave to appeal disposition sheet. As such, the Blumenthal decision will be reviewed by the Illinois Supreme Court.

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