Illinois Matrimonial & Family Law

Common-Law Marriage, Contract
Theories, and Cohabitation Agreements

18 August 2016

by Wes Cowell

 

Illinois abolished common law marriage in 1905.  Despite sea changes in what "family" means, common law claims find no quarter in Illinois.  Can't find the answer? Need advice? Call or leave your info.

 

Abraham Lincoln practiced law in Illinois from 1836 to 1860 when Illinois' population was about 1.7 million -- not a lot of people.  The resources to formalize marriages (clerk's to issue licenses, officiants, other clerks to record marriage certificates, etc.) simply were not available to many.  Couples on the wild prairie often had to fall back on "common law" marriages:  no license, no certificate, maybe a small ceremony . . . no muss, no fuss.  Things went on that way for almost 100 years.  By 1905, however, Illinois had grown (the population then was more than 5 million), had become more sophisticated, and was a transportation hub for the nation receiving and transmitting new ideas and aspects of culture.  At that point, Illinois prohibited common-law marriages.

 

Today, only eight states allow common-law marriages (and they all have specific restrictions).  Since the beginning of the last century, however, the law in Illinois has been: if you don't satisfy the requirements of the law, you are not married.  No matter how long you've lived together, no matter what you tell others, even if you exchange rings and vows, if you ignore the requirements of the law you cannot enjoy the legal benefits of marriage. Children born to or adopted by, common-law marriages, however, are considered "legitimate" under Illinois law.

 

Public Policy Against Common Law Marriage:  If you take on a roommate and the two of you share expenses and some income and some wealth, if you part ways you each may have a claim against the other to get back some of what you contributed over the years.  Legal theories abound:  there might be written contracts, oral contracts, restitution, the general fairness theory of "unjust enrichment," and the list goes on.  If we take those same roommates in that same situation and add S-E-X into the mix, however, all those theories go right out the window.  That's because the law looks upon "I'll-give-you-sex-if-you-support-me-and-give-me-stuff" arrangements as immoral and undermining the institution of marriage.

 

Imagine that:  neighbors, acquaintances, siblings, personals-ad respondents, and plain strangers can agree to live together and share expenses.  When they part ways, if either of them feels they got the short end of the deal, they can take their claim to court.  This is true for anyone and everyone . . . except couples who love each other and care about each other enough that they decide to live together.  For those people, there is no relief unless they marry.

 

Foreign Common Law Marriage:  If you establish a common-law marriage in a state that still recognizes common-law marriages, Illinois may recognize the marriage if you later move to Illinois.   It's not a sure bet, though.  This "we'll-recognize-it-here-if-it-was-recognized-there" rule speaks to us from a time when the nation was expanding and plenty of citizens lived where there WERE no laws about marriage and getting to the County Clerk's office was a multi-day ordeal.  That made common law marriage the only game in many towns.  Since we still have a few states that recognize common law marriage, we still have the "here-as-there" rule.  In the 21st century, however, these cases are very frowned upon.  Consider these cases:

 

1942:  Peirce v. Peirce -- Validity of Foreign Common Law Marriage Depends on Domicile:  If you live in Illinois and move to a state the recognizes common-law marriage knowing you'll move back to Illinois, you cannot establish a common-law marriage while you're in the other state.  These situations come up, and it can be the stuff of Hollywood:  consider the case of "When Harry Met Era:"  Harry Peirce married Theresa in Montana.  Thirteen years later, while traveling on business, Harry met Era, who was from Illinois.  Two years after that -- in 1907, just two years after Illinois abolished common law marriage -- Harry and Era rendezvoused in Mexico where they married in a religious ceremony (no license, no certificate).  Harry lied when he told Era he had divorced Theresa.  Harry and Era spent two months in Mexico, then four months in Cuba (for Harry's job), then on to New York for a few months and they spent the next six years in Texas. They had four children. Harry lost his job in Texas in 1915 and the couple stayed with Era's parents, back in Illinois.  Harry couldn't find work and soon he traveled west seeking employment.  While in Nevada, he filed for divorce against Theresa.  He must have been surprised when, after his seven-year absence, Theresa showed up with a lawyer and counter-sued.  She prevailed with a handsome judgment for alimony.  Ouch!

 

Harry never mentioned the divorce case to Era.  Instead, he invited Era to join him in Nevada and they stayed there for about a month in the summer of 1916.  The dates are important:

• he celebrated a religious marriage to Theresa in 1907 in Mexico

• he lost his job in Texas in 1915,

• went to stay with Era's family at their Illinois farm,

• almost immediately set out looking for work,

• divorced Theresa, later in 1916, and

• spent a month with Era in Nevada.  

 

Nevada allowed common law marriage and that one-month stay was enough to seal the deal according to Nevada case law.  Harry and Era returned to Illinois where, for Harry's work, they bounced around for about four years and then finally broke up in 1920.  So, from 1907 in Mexico until 1920 in Illinois -- including a one-month stint in Nevada -- Harry and Era held themselves out to the world as husband and wife -- a happy family with four children.

 

Harry died in 1939 and Richard, his oldest son by Era, petitioned to administer his estate.  Imagine everyone's surprise when Augustus Peirce, Harry's son by Theresa, showed up in Illinois to say that Richard was an illegitimate bastard and that Augustus was Harry's only real heir.  OMG!!  The question for the court was whether Era's four kids were legitimate or bastards . . . and the answer depended on whether Illinois would recognize the common law marriage established in Nevada after Harry divorced Theresa. The marriage in Mexico was a religious ceremony and carried no weight in law, and all the other places they stayed (except Nevada) didn't allow for the creation of common-law marriages.  So everything hinged on that one month in Nevada.

 

The Illinois Supreme Court said that the analysis came down to the couple's "domicile;"

 

"a common law marriage is void in Illinois, even if performed in some other jurisdiction. The rule, however, is limited to the situation where the parties whose marriage is sought to be upheld in Illinois were, at the time of the marriage, domiciled in Illinois, although the marriage occurred in another State. The general rule of conflict of laws is that the marital status is governed by the law of the State of domicile."  (citation omitted)

. . . .

Such marriages contracted between the citizens of a state in other states in disregard of the statutes of the state of their domicile will not be recognized in the courts of the latter state though valid where celebrated.’ Where the parties are domiciled in another State at the time of contracting a common law marriage, valid in such State, such marriage will be considered valid there upon their removal to Illinois. (citations omitted).

Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990 (Ill., 1942)

 

So, what about poor Era, Richard, and his siblings?  Not to worry:  the Illinois Supreme Court said that when Harry and Era stayed in Nevada, at that time, NEVADA WAS THEIR DOMICILE! 

 

"Era Peirce was temporarily sojourning at the home of her relatives in Illinois, while Harry M. Peirce was looking for a location in which to establish a business of some kind or to seek employment. There is no evidence in the record which indicates that he gained a residence or a domicile in Illinois, or had any intention of establishing a home here until some years later. After leaving his wife and children at her parental home he left them intending to establish a home in Nevada. Era Peirce had no intention of remaining in Illinois until after the failure of the Nevada venture. Her domicile, during the summer of 1916, if anywhere, was in Nevada. She joined her husband, at his request, in that State, for the purpose and with the intent of making their home there. They there lived together as husband and wife and represented themselves to be such.

Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990 (Ill., 1942)

 

Richard and his siblings inherited Harry's estate . . . and Augustus got NOTHING!

​

1976:  Marvin v. Marvin -- Validation of "Palimony:"  This is a 1976 case out of California, but courts around the country (including in Illinois) have looked to it a lot because it is an illustrious and prominent case on the topic of "palimony."  Hollywood character star Lee Marvin was married to Betty Marvin until January, 1967, but during the latter part of that marriage he lived with Michelle Triola (from October, 1964 through May, 1970 and she called herself Michelle Marvin -- hence the case name).  After they separated, Lee supported Michelle for six months.  Michelle thought that wasn't enough and sued Lee, arguing that they had an oral contract that while ". . . the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.'  Furthermore, they agreed to 'hold themselves out to the general public as husband and wife' and that 'plaintiff would further render her services as a companion, homemaker, housekeeper and cook to . . . defendant.'  Michelle wanted half of all of Lee's stuff.  Michelle's attorney, Marvin Michelson, coined the term "palimony," describing it as "marriage . . . with no rings attached."

 

The trial court threw out her case saying that since she never married Lee, she couldn't seek to recover any money as a wife could.  Michelle appealed.  The California Supreme Court said times had changed, society had changed, and it was time to consider "palimony" -- divorce-like awards for couples who never married.  The California Supreme Court said she might have a point and the trial court should allow her to try to make her case.  Essentially, the California Supreme Court said you could get married and have all the benefits of marriage, or you could skip the marriage and simply have a contract (including an oral contract) that covered whatever you wanted (so long as it wasn't flat out "I'll-support-you-and-you'll-give-me-sex").  Back at the trial court, she won a measly $104,000; essentially wages for the services she provided over the years.  That works out to about $9.25 / hour if you look at it as a full-time job -- far short of the one-and-a-half million she was seeking).  Then, Lee appealed and HE won -- he ended up having to pay her NOTHING!

 

1979:  Hewitt v. Hewitt -- The Grandaddy of Illinois Cohabitation cases:   A few years after the Marvin case, the Illinois Supreme Court considered the rights of unmarried couples and ran in the other direction.  Bear in mind that, at the time, it was against the law, in Illinois, for opposite-sex partners to cohabit ("a person who cohabits . .  .commits fornication if the behavior is open and notorious"  Ill. Rev. Stat. 1961, ch. 38, para 11-8).

 

Victoria and Robert Hewitt met at Grinnell College in Iowa and while still at school in 1960, Victoria became pregnant.  Robert promised her that they ". . . were husband and wife and would live as such, no formal ceremony being necessary, and that he would 'share his life, his future, his earnings and his property' with her; that the parties immediately announced to their respective parents that they were married and thereafter held themselves out as husband and wife."  Relying on Robert's promises, Victoria devoted her efforts to Robert's education and even borrowed money from her parents to help develop his pediatric dentistry practice in Champaign, Illinois.  By 1975 Robert, who was broke when he graduated, was earning $80,000 and up. That's when things went sour.

 

Victoria sued for divorce in Illinois arguing that they had a common-law marriage out of Iowa and she wanted half the wealth Robert had accumulated.  She lost that argument because 1) there had been no ceremony in Iowa as required by that state's common-law marriage requirements and 2) they had never cohabited in Iowa.  Then she argued that even if they didn't have a common-law marriage, she still should get something based on Robert's promises.  The trial court rejected her contract and equity arguments, as well.  She appealed. 

 

The appellate court reversed the trial court, putting a lot of weight on the fact that this couple had lived as husband and wife for over 15 years -- and they weren't your typical hippie-dippy, drug-doing, Grateful Dead-listening, war-protesting, unruly live-in kids.  "[T]hey lived a most conventional, respectable, and ordinary family life that did not flout accepted standards, the single flaw being the lack of a valid marriage . . . ."   Victoria, they said, should get a fair amount of the wealth Robert had built up.

 

Before the trial court could start a do-over, Robert appealed to the Illinois Supreme Court.  Remember that, in 1979, nearly all states had adopted "no-fault" divorce -- Illinois was among a handful of hold-out states that still required "grounds" to divorce.  Illinois was about as conservative a place as you could find when it came to divorce law.   The Illinois Supreme Court said that Victoria's and Robert's relationship was nothing more than a common-law marriage . . . and could not be recognized in Illinois.  Moreover, the Hewitt court rejected Victoria's contract and equitable theories of (1) an oral contract, 2) an implied contract, 3) constructive trust, and 4) unjust enrichment.  The court said that to allow unmarried cohabitants to proceed on contract or equitable theories would contravene Illinois public policy and would undermine the institution of marriage.

 

Got that?  That's HUGE: That means that if Victoria had lived next door to Robert, she probably would have been successful on everything.  If the case had involved two guys, Robert and Victor, living as roommates, the case almost certainly would have been a success.  If this had simply been two roommates who found each other through a housing-to-share ad everything would've been fine.  As an "unmarried cohabitant," however, Victoria had virtually no rights under contract or equity.  The Supreme Court's big bugaboo was that there seemed to be one additional term to this unwritten contract: sex-in-exchange-for-support-and-stuff -- and the Supremes didn't want to do anything to support contracts like that.  Illinois' public policy of protecting and strengthening the institution of marriage overrode Victoria's claims for fairness.  Because Victoria was living in sin with Robert, none of her contract and equitable theories held any water -- in such circumstances, the live-in girlfriend got screwed (so to speak).  Victoria got NOTHING! 

 

1983:  Spafford v. Coats -- Hewitt Pushback:  Donna Spafford moved in with Richard Coats in August 1975.  They broke up in October 1981.  While they lived together, Donna bought a 1976 El Camino with her own money, bought two Harley Davidson motorcycles with her own money (and a little help from Richard's trade-in on his prior motorcycle, but not that much), and made a $2,000 down payment on a 1980 Lincoln Mark IV.  The vehicles were titled in Richard's name -- he told her it had to be that way "for insurance purposes."  When they split up, Richard kept the vehicles.  Donna sued on the equitable theory of constructive trust (see below under "Contract Theories").

 

The trial court cited Hewitt and ruled in favor of Richard.  Since there was no contract between Richard and Donna, and Richard's name was on all the titles, he owned the vehicles -- end of story.  Moreover, the court said that even if they looked at the case under equitable principals, Donna still would lose.  She may have made all the payments for the vehicles, but Richard was paying all the other bills for those six years -- Donna had a roof over her head, food in the fridge, the lights and water stayed on etc.  She shouldn't expect to walk away with the big assets after Richard paid all those bills.

 

Donna appealed.  The appellate court said that the real issue was whether Donna's case was barred by the public policy declared by Hewitt.  The Spafford court noted that Donna's case was different from Hewitt -- because Spafford's claims had an economic basis independent of the nonmarital, cohabiting relationship, she was permitted to recover her independent contributions:

 

"We perceive the real and underlying concern of the supreme court in Hewitt was that judicial recognition of mutual property rights between knowingly unmarried cohabitants -- where the claim is based upon or intimately related to the cohabitation of the parties -- would in effect grant to unmarried cohabitants substantially the same marital rights enjoyed by married persons, resurrect the doctrine of common-law marriage, and contravene the public policy enunciated by the Illinois legislature to strengthen and preserve the integrity of marriage.  The plaintiff's claims in Hewitt for one-half of defendant's property were based primarily upon her services as housekeeper and homemaker and obviously fell afoul of the court's concerns.  However, where the claims do not arise from the relationship between the parties and are not rights closely resembling those arising from conventional marriages, we conclude that the public policy expressed in Hewitt does not bar judicial recognition of such claims. 

 

Unlike the plaintiff's claims in Hewitt, the claims of Donna Spafford are based on evidence that she furnished substantially all of the consideration for the purchase of several vehicles and that under the circumstances shown by the evidence adduced by the plaintiff, permitting the defendant to retain all of the vehicles would constitute an unjust enrichment which equity should not permit."

Spafford v. Coats, 118 Ill.App.3d 566, 74 Ill.Dec. 211, 455 N.E.2d 241, (Ill.App. 2 Dist., 1983)

 

1984:  Illinois Adopts "No-Fault" Divorce.  When Hewitt was decided in 1979, the court noted that California allowed no-fault divorce and Illinois did not.  That fact, the court said, helped facilitate the Marvin decision.  The Hewitt court said Illinois' retention of fault grounds for divorce reflected a public policy that sought to " . . . prevent[] the marriage relation from becoming in effect a private contract terminable at will."  Hewitt, 77 Ill. 2d at 63 - 64, 394 N.E.2d at 1210.  That changed when Illinois' 83rd General Assembly passed Senate Bill 189 adopting no-fault ("irreconcilable differences) divorce.  Gov. Jim Thompson signed the bill and the law became effective 1 July 1984.

 

1990:  Ayala v. Fox -- Hewitt Reaffirmed: Anita Ayala moved in with Lawrence Fox in August 1976.  Lawrence then proposed that they build a house together on land he owned.  Lawrence promised that he would transfer the property's title to "joint tenancy" once the home was built and that, if they ever broke up, Anita would get half the equity of the house (but not the land).  Anita agreed and borrowed $48,000 to cover her share of the construction costs. The house was finished and the couple moved in in 1978.  They paid the mortgage (in Anita's name) jointly except when Lawrence was unemployed for several years and Anita paid the mortgage on her own. Anita said that Lawrence promised he would pay her back for covering his payments while unemployed.  They broke up in 1988.  Lawrence didn't do any of the things he promised.  Anita sued claiming 1) promissory estoppel, 2) unjust enrichment. 3) breach of fiduciary duty (she was seeking a constructive trust using a novel argument -- Anita claimed she and Lawrence "lived together as husband and wife" and that Lawrence owed her a fiduciary duty arising from that relationship), 4) she wanted half of the personal property the couple had acquired because she helped pay for all of that, too, and 5) by an oral contract the couple had formed a partnership (like a business) to build the house and they were dissolving that business partnership and needed the court to help wind up the partnership's affairs and make a distribution of the partnership's assets.

 

Lawrence held up Hewitt as his shield and the trial court agreed.  The trial judge reasoned that

 

"Hewitt stood for the proposition that 'property disputes between persons who lived together without the benefit of marriage are not going to be recognized by the Court.'  Accordingly, the court held that due to the parties' cohabitation, Hewitt barred plaintiff's claims."

Ayala v. Fox, 206 Ill.App.3d 538, 564 N.E.2d 920, 921, 151 Ill.Dec. 465, 466 (Ill.App. 2 Dist., 1990).

 

Anita appealed and said her case was more like Donna Spafford's:  like Donna, she had evidence of the loan and she could show a title that should bear her name but was kept in her boyfriend's name.  The Appellate court disagreed, saying:

 

[Donna Spafford] did not seek recovery based on rights closely resembling those arising from a conventional marriage or on rights founded on proof of cohabitation; therefore, the court allowed recovery to prevent unjust enrichment.  In the present case, plaintiff is seeking recovery based on rights closely resembling those arising from a conventional marriage, namely, an equitable interest in the marital residence.  Unlike Spafford, plaintiff's claim here is intimately related to her cohabitation with Fox.  If we were to agree with plailntiff, we would, in effect, be granting to an unmarried cohabitant substantially the same marital rights as those which married persons enjoy.  Such a holding would contravene the public policy of this State.  Thus, we hold that plaintiff, as an unmarried cohabitant, is not entitled to an equitable interest in the property at issue in this case.

Ayala v. Fox, 206 Ill.App.3d 538, 564 N.E.2d 920, 922, 151 Ill.Dec. 465, 467 (Ill.App. 2 Dist., 1990).

 

Ouch!  Anita got NOTHING!