Love Means Never Having to Say I Do

The Marriage and Dissolution of Marriage Act provides a framework for resolving the effect of a failure of a marriage, including ways to resolve the distribution of assets, allocations of debts and issues involving children. However, non-married couples do not receive the benefit of that framework, and with the ever increasing number of couples choosing not to marry, it has become imperative that couples make pro-active choices, despite how unromantic, to protect themselves and all of their loved ones.

In 1979, the Illinois Supreme Court decided Hewitt, a case in which the woman, Victoria, alleged that she lived with a man, Robert, for fifteen years, holding themselves out as husband and wife and having two children together. When the relationship failed, she brought an action in court asserting that Robert promised he would share his property and earnings with her, that she was equitably entitled to one half of those assets and seeking to impose a trust for her own benefit to secure those assets. The Supreme Court held that to grant Victoria's action would lead to a return to common law marriage, something the Illinois legislature abolished in 1905. At the same time, the Supreme Court ruled that parties who cohabit can form valid contracts about independent matters.

In the years following the Hewitt decision, the Appellate Court has had several occasions to examine issues addressed in Hewitt. The Appellate Court has allowed a party to proceed against a former partner when the claims made were specific, rather than general, such as an entitlement to one half of the assets or claims that resemble those arising from a marriage. In a 2000 case, the Appellate Court refused a woman's claim for a constructive trust dealing with her purchase of groceries and similar household items. The Court did, however, permit her to proceed with her claim based upon the fact that she paid off the balance of her former lover's mortgage, holding that she paid money to him that he had agreed to repay at a future date, so that she could recover in contract or quasi-contract.

Lessons Learned

The bottom line with the succession of cases following the Supreme Court's decision in Hewitt is that it is best to have a cohabitation agreement addressing issues such as the disposition of real estate and personal property purchased by the parties while they live together, responsibility for debts, both on an ongoing basis, such as groceries and utility bills, and long term debts, such as a home mortgage or a substantial credit card bill. In these highly charged circumstances, it is as easy to have a dispute over who gets the dog as it is over who gets the house and both should be addressed.

Cohabitation agreements are not limited to heterosexual couples; homosexual couples face exactly the same issues and should engage in the same planning. Like a prenuptial agreement, there should be full disclosure of each party's financial circumstances and each party should have separate counsel in order to ensure that the agreement is enforceable.

'Til Death Do Us Part

It is also essential that non-married couples plan for the death or disability of one another. Like a married couple, it is important to have estate planning. Unlike the protections built into the Probate Act, the Health Care Surrogate Act and other legislation, there is no protection for an unmarried couple, so that a couple that has shared one partner's home for fifteen years may, on the death of that partner, face the unceremonious eviction of the other partner. Moreover, funeral arrangements will be the responsibility of the blood relatives rather than the unmarried partner. The preparation of proper estate planning documents will ensure that a couple's intentions are fulfilled and that each partner's rights are preserved.

And Then, the Kids

Certain legal presumptions exist when children are born to married couples that do not exist when the parties never marry. If a father wishes to retain his rights, it is vital that the parties sign a voluntary acknowledgment of parentage under the Parentage Act of 1984. It is binding upon both of the parties and has the force of a judgment; it can be challenged only for fraud, duress or material mistake of fact. In addition, it is essential that the father sign the Putative Father Registry, a registry indicating that he may be the father of the child. The Putative Father Registry was born of the Baby Richard case, an Illinois Supreme Court case that tossed out a three year old adoption because the mother lied to the father, indicating that the child was dead, so that the father never pursued his rights to the child. The Putative Father Registry is designed to allow a potential father, whether he believes the mother to be pregnant or not, to register so that in the event a child is born he will be afforded certain rights. The flip side is that failure to sign the Putative Father Registration within thirty days of the child's birth bars the father from many rights. Consequently, it is prudent to sign both the voluntary acknowledgment of parentage and the Putative Father Registry.

Once paternity is established, both parties have the right to seek custody, visitation, child support and all of the other remedies available to married couples. These issues are covered in the article in this section of the website titled Children Out of Wedlock.