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Hewitt v. Hewitt





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Harold L. Jensen, Judge, presiding.


The issue in this case is whether plaintiff Victoria Hewitt, whose complaint alleges she lived with defendant Robert Hewitt from 1960 to 1975 in an unmarried, family-like relationship to which three children have been born, may recover from him "an equal share of the profits and properties accumulated by the parties" during that period.

Plaintiff initially filed a complaint for divorce, but at a hearing on defendant's motion to dismiss, admitted that no marriage ceremony had taken place and that the parties have never obtained a marriage license. In dismissing that complaint the trial court found that neither a ceremonial nor a common law marriage existed; that since defendant admitted the paternity of the minor children, plaintiff need not bring a separate action under the Paternity Act (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 51 et seq.) to have the question of child support determined; and directed plaintiff to make her complaint more definite as to the nature of the property of which she was seeking division.

Plaintiff thereafter filed an amended complaint alleging the following bases for her claim: (1) that because defendant promised he would "share his life, his future, his earnings and his property" with her and all of defendant's property resulted from the parties' joint endeavors, plaintiff is entitled in equity to a one-half share; (2) that the conduct of the parties evinced an implied contract entitling plaintiff to one-half the property accumulated during their "family relationship"; (3) that because defendant fraudulently assured plaintiff she was his wife in order to secure her services, although he knew they were not legally married, defendant's property should be impressed with a trust for plaintiff's benefit; (4) that because plaintiff has relied to her detriment on defendant's promises and devoted her entire life to him, defendant has been unjustly enriched.

The factual background alleged or testified to is that in June 1960, when she and defendant were students at Grinnell College in Iowa, plaintiff became pregnant; that defendant thereafter told 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; that in reliance on defendant's promises she devoted her efforts to his professional education and his establishment in the practice of pedodontia, obtaining financial assistance from her parents for this purpose; that she assisted defendant in his career with her own special skills and although she was given payroll checks for these services she placed them in a common fund; that defendant, who was without funds at the time of the marriage, as a result of her efforts now earns over $80,000 a year and has accumulated large amounts of property, owned either jointly with her or separately; that she has given him every assistance a wife and mother could give, including social activities designed to enhance his social and professional reputation.

The amended complaint was also dismissed, the trial court finding that Illinois law and public policy require such claims to be based on a valid marriage. The appellate court reversed, stating that because the parties had outwardly lived a conventional married life, plaintiff's conduct had not "so affronted public policy that she should be denied any and all relief" (62 Ill. App.3d 861, 869), and that plaintiff's complaint stated a cause of action on an express oral contract. We granted leave to appeal. Defendant apparently does not contest his obligation to support the children, and that question is not before us.

The appellate court, in reversing, gave considerable weight to the fact that the parties had held themselves out as husband and wife for over 15 years. The court noted that they had lived "a most conventional, respectable and ordinary family life" (62 Ill. App.3d 861, 863) that did not openly flout accepted standards, the "single flaw" being the lack of a valid marriage. Indeed the appellate court went so far as to say that the parties had "lived within the legitimate boundaries of a marriage and family relationship of a most conventional sort" (62 Ill. App.3d 861, 864), an assertion which that court cannot have intended to be taken literally. Noting that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) does not prohibit non-marital cohabitation and that the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-8(a)) makes fornication an offense only if the behavior is open and notorious, the appellate court concluded that plaintiff should not be denied relief on public policy grounds.

In finding that plaintiff's complaint stated a cause of action on an express oral contract, the appellate court adopted the reasoning of the California Supreme Court in the widely publicized case of Marvin v. Marvin (1976), 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815, quoting extensively therefrom. In Marvin, Michelle Triola and defendant Lee Marvin lived together for 7 years pursuant to an alleged oral agreement 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." (18 Cal.3d 660, 666, 557 P.2d 106, 110, 134 Cal.Rptr. 815, 819.) In her complaint she alleged that, in reliance on this agreement, she gave up her career as a singer to devote herself full time to defendant as "companion, homemaker, housekeeper and cook." (18 Cal.3d 660, 666, 557 P.2d 106, 110, 134 Cal.Rptr. 815, 819.) In resolving her claim for one-half the property accumulated in defendant's name during that period the California court held that "The courts> should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services" and that "In the absence of an express contract, the courts> should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts> may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case." (18 Cal.3d 660, 665, 557 P.2d 106, 110, 134 Cal. Rptr. 815, 819.) The court reached its conclusions because:

"In summary, we believe that the prevalence of non-marital relationships in modern society and the social acceptance of them, marks this as a time when our courts> should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant case. * * *

The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many." 18 Cal.3d 660, 683-84, 557 P.2d 106, 122, 134 Cal.Rptr. 815, 831.

It is apparent that the Marvin court adopted a pure contract theory, under which, if the intent of the parties and the terms of their agreement are proved, the psuedo-conventional family relationship which impressed the appellate court here is irrelevant; recovery may be had unless the implicit sexual relationship is made the explicit consideration for the agreement. In contrast, the appellate court here, as we understand its opinion, would apply contract principles only in a setting where the relationship of the parties outwardly resembled that of a traditional family. It seems apparent that the plaintiff in Marvin would not have been entitled to recover in our appellate court because of the absence of that outwardly appearing conventional family relationship.

The issue of whether property rights accrue to unmarried cohabitants can not, however, be regarded realistically as merely a problem in the law of express contracts. Plaintiff argues that because her action is founded on an express contract, her recovery would in no way imply that unmarried cohabitants acquire property rights merely by cohabitation and subsequent separation. However, the Marvin court expressly recognized and the appellate court here seems to agree that if common law principles of express contract govern express agreements between unmarried cohabitants, common law principles of implied contract, equitable relief and constructive trust must govern the parties' relations in the absence of such an agreement. (18 Cal.3d 660, 678, 557 P.2d 106, 118, 134 Cal.Rptr. 815, 827; 62 Ill. App.3d 861, 867-68.) In all probability the latter case will be much the more common, since it is unlikely that most couples who live together will enter into express agreements regulating their property rights. (Bruch, Property Rights of De Facto Spouses, Including Thoughts on the Value of Homemakers' Services, 10 Fam. L.Q. 101, 102 (1976).) The increasing incidence of non-marital cohabitation referred to in Marvin and the variety of legal remedies therein sanctioned seem certain to result in substantial amounts of litigation, in which, whatever the allegations regarding an oral contract, the proof will necessarily involve details of the parties' living arrangements.

Apart, however, from the appellate court's reliance upon Marvin to reach what appears to us to be a significantly different result, we believe there is a more fundamental problem. We are aware, of course, of the increasing judicial attention given the individual claims of unmarried cohabitants to jointly accumulated property, and the fact that the majority of courts> considering the question have recognized an equitable or contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit consideration. (See cases collected in Annot., 31 A.L.R.2d 1255 (1953) and A.L.R.2d Later Case Service supplementing vols. 25 to 31.) The issue of unmarried cohabitants' mutual property rights, however, as we earlier noted, cannot appropriately be characterized solely in terms of contract law, nor is it limited to considerations of equity or fairness as between the parties to such relationships. There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. Will the fact that legal rights closely resembling those arising from conventional marriages can be acquired by those who deliberately choose to enter into what have heretofore been commonly referred to as "illicit" or "meretricious" relationships encourage formation of such relationships and weaken marriage as the foundation of our family-based society? In the event of death shall the survivor have the status of a surviving spouse for purposes of inheritance, wrongful death actions, workmen's compensation, etc.? And still more importantly: what of the children born of such relationships? What are their support and inheritance rights and by what standards are custody questions resolved? What of the sociological and psychological effects upon them of that type of environment? Does not the recognition of legally enforceable property and custody rights emanating from non-marital cohabitation in practical effect equate with the legalization of common law marriage — at least ...

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