In the case of In re Marriage of Allen, 2016 IL App (1st) 151620, Husband and Wife had been married for less than 7 months when they each filed cross petitions for Divorce against each other.  Wife later wanted to add to her Petition the additional information that they had cohabited 13 years prior to the marriage. Wife wanted the Court to award her property that had been accumulated during those 13 years under a common law theory. She argued that the cohabitation was similar to a marriage, including her pre-marital “wife-like” support of Husband during some of the years he was building a lucrative career and accumulating substantial assets. The Court denied her motion to add this period of time and common law claim and granted the divorce.  Wife’s property share and maintenance were based on the 7 months of marriage.  Wife appealed the denial of her common law claim.

A little background: Days before the Allen’s trial, the Illinois Appellate Court had issued its decision in Blumenthal v. Brewer, 2014 IL App (1st) 132250, 24 N.E.3d 168, recognizing the right of a woman in a same-sex relationship to bring common law claims to distribute property she had jointly accumulated with her partner while cohabitating for 26 years during the period when Illinois treated same-sex relationships as illicit and did not recognize same-sex marriages. Wife relied on this case and on the case of Hewitt v Hewitt (77 Ill. 2d 49, 394 N.E.2d 1204), which concerned an unmarried, opposite-sex couple who had a family-like relationship for 15 years, during which there was no legal impediment to prevent the man and woman from marrying.

Wife asked to postpone the trial and reopen discovery into Husband’s assets as far back as the start of the couple’s relationship in 1999 to cover the period when Husband first began leasing and franchising McDonald’s restaurants. Wife also asked to be awarded $30,000 from Husband with which to retain a financial expert who would analyze and testify to the increase in Husband’s assets during the parties’ unmarried years together, and to be awarded $50,000 in attorney fees from Husband so that her divorce attorney could pursue discovery and prepare the appropriate claim(s).

The Court again refused to allow any argument from Wife either related to the Hewitt or the Blumenthal cases. The court found that the judiciary should not recognize mutual property rights between unmarried couples for a number of reasons.  The Illinois Marriage and Dissolution of Marriage Act expressly prohibited the recognition of common law marriage.  Also, the legislature provided that an unmarried person may acquire the rights of a legal spouse only if he or she goes through a marriage ceremony and cohabits with another in the good-faith belief that he or she is validly married.

The Court did not extend its holding in Blumenthal to married couples of the opposite sex. It should be noted that since this decision was rendered, the Illinois Supreme Court has overruled the First District Blumenthal ruling, which can be found at Blumenthal v. Brewer, 2016 IL 118781.

Common law claims for property division do not exist for either same sex or opposite sex couples.

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