Can Unmarried Same-Sex Couples Get “Divorced” in Illinois?

 Posted on December 13, 2016 in Same Sex Marriage in Illinois

same-sex, Wheaton divorce attorneySame-sex marriage has been legal in Illinois since 2014. Of course, many same-sex couples cohabited for years, even decades, prior to this change in the law. The Illinois Supreme Court recently addressed whether unmarried same-sex couples who ended their relationship prior to 2014 could enforce “marriage-like” rights with respect to the division of property.

Supreme Court Rules Cohabiting Partners Cannot Assert Common-Law Marriage Claims

The plaintiff and the defendant in this case were in a long-term domestic partnership from approximately 1981 until 2010. The couple co-owned their home. After the relationship ended, the plaintiff moved out and sued the defendant, seeking a “fair division and partition” of the property. The defendant filed a counter-claim, alleging she and the plaintiff had a relationship “identical in every essential way to that of a married couple,” and accordingly sought division of the couple's property based on the same principles as Illinois divorce law.

The plaintiff opposed the counter-claim, noting that under Illinois law “unmarried cohabitants” could not “enforce mutual property rights where those rights are rooted in a marriage-like relationship between the parties.” Specifically, the defendant was proposing she had a common-law marriage with the plaintiff, which is expressly barred by Illinois law.

A common-law marriage is a relationship that is treated as a marriage for legal purposes even though the couple never participated in a formal ceremony or registered their union with the appropriate authorities. Only a handful of U.S. states still permit common-law marriages. Most prohibit or restrict recognition of such unions. The Illinois General Assembly banned common-law marriages as of July 1, 1905.

In 1979, the Illinois Supreme Court held this statewide ban on common-law marriage prevented unmarried cohabiting couples of any kind from asserting marriage-like rights under state law. In this case, the defendant argued this decision was no longer applicable given shifts in public policy, including the legalization of same-sex marriage in Illinois. In response, the plaintiff said the 1979 decision remained valid because it reflected the “ongoing public policy that individuals acting privately by themselves cannot create a marriage relationship and that the government must be involved in the creation of that bond.”

The Supreme Court agreed with the plaintiff. In a written opinion, the justices reaffirmed its 1979 decision and said couples cohabiting outside of marriage could not assert the same common-law property claims as divorcing couples. The Court said it was up to the legislature, not the judiciary, to change the law in this regard.

A Lawyer Can Help

Many people cohabit or live in long-term arrangements outside of marriage. Although these couples may not be entitled to the same rights as divorcing spouses under Illinois law, there alternative ways for cohabiting individuals to end their relationship in a productive manner that avoids litigation. A passionate DuPage County family law attorney can assist you with alternative forms of dispute resolution such as mediation. Contact our offices today if you would like to speak with an experienced lawyer about your situation.


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