Blumenthal v Brewer: What Can Go Wrong If Couples Do Not Marry

Divorce section of the property by legal means.

Women and men who do not marry each other, even in decades-long relationships, have no right to maintenance (formerly called alimony) if the relationship ends.  These unmarried women and men also have no right to their former partner’s property, such as a profitable business and retirement benefits, even if they contributed time and money to the acquisition of the property.  On August 18, 2016, in the case of Blumenthal v Brewer, the Illinois Supreme Court stated that this was also true for same sex couples who end their relationship.  While the morality and fairness of this outcome are debatable, what is undeniable is that there can be disastrous economic consequences from not marrying.

Jane Blumenthal and Eileen Brewer were same sex partners for years who never married.  They raised children together and combined their finances.  Blumenthal ended the relationship and Brewer asked the court to award her a share of Blumenthal’s medical practice or to reimburse Brewer for the money Brewer contributed to the development of the practice.  The Illinois Supreme Court rejected Brewer’s claim.  As the Court stated, married couples have the right to the equitable distribution of all property acquired during the marriage, and Brewer’s claim against Blumenthal’s medical practice was the assertion of a right that only married couples have.  Since the Illinois General Assembly has banned common law marriage since 1905, recognizing Brewer’s claim would violate this statutory ban.  As a result, Brewer lost the money she contributed to Blumenthal’s practice, and Brewer lost any right to share in the value of the practice that she would have had if they had been married.  The Blumenthal court identified several limited exceptions to this rule, such as where property is purchased or business investments are made for reasons that are unrelated to a marital-type relationship, or where one partner contributed nearly all the capital to the other partner’s business.

The Blumenthal decision also discussed the Illinois Supreme Court’s 1979 decision of Hewitt v Hewitt.  Victoria and Robert Hewitt met in college in 1960.  When Victoria became pregnant Robert told her they did not need to get married, and that they would share equally in all the property acquired during their relationship.  They did not marry but lived together as “husband and wife” and raised three children until their relationship ended in 1975.  Relying on the statutory ban on common law marriage, the Hewitt court held that Victoria was not entitled to any portion of Robert’s business or to any of the property he owned in his own name.

Blumenthal has been criticized for being insensitive to same sex partners, and for overlooking that Hewitt has become an outdated anachronism in light of the vast changes in societal and moral attitudes since 1979.  However, unless the General Assembly passes new laws to modify Blumenthal and Hewitt, both same sex and heterosexual couples are taking a financial risk when they decide not to become married.

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Brian A. Schroeder

About Brian A. Schroeder

Brian A. Schroeder is an accomplished appellate attorney with over 20 years of experience. He brings to every case strong analytical skills, powerful advocacy, and a genuine concern for his clients. Mr. Schroeder has argued cases before the Illinois Supreme Court, all five Districts of the Illinois Appellate Court, and the United States Court of Appeals for the Seventh Circuit.

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