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Illinois Bar Journal

The Magazine of Illinois Lawyers

June 2012Volume 100Number 6Page 308

June 2012 Illinois Bar Journal Cover Image

Family Law

Cohabitation Agreements after the Civil Union Act

By
Natalie T. Lorenz

The Civil Union Act represents a movement away from Illinois’ public policy of encouraging only traditional heterosexual married couple relationships, prompting the question: Should Illinois join 47 other states and recognize unmarried couples’ cohabitation agreements, too?

Cohabitation without marriage has become increasingly prevalent in the United States.1 The U.S. Census Bureau statistics showed 7.5 million unmarried heterosexual couples in the U.S. cohabited in 2010, representing a 13 percent increase from 2009.2 There were also 620,000 same-sex cohabiting couples in 2010,3 up from 476,000 in 2009.4

Because they operate outside the legal regime built around marriage, approximately 29 percent of these couples use cohabitation agreements5 to govern aspects of their relationships.6 For some couples, a cohabitation agreement may seek “to establish the same type of rights and obligations that married people obtain by custom, statute, and agreement.”7 For couples who do not want the rights and obligations of marriage, cohabitation agreements may be used simply to provide clarity about property they have commingled during the relationship.8

Cohabitation agreements have not been an option for unmarried couples in Illinois, however, which is one of only three states in the nation that generally refuse to enforce such agreements.9 Illinois has taken this position under the traditional view that marriage should be supported because it promotes procreation, and living arrangements competitive with marriage should be discouraged.10

The recent passage of the Illinois Religious Freedom Protection and Civil Union Act11 (“Civil Union Act”) calls this policy into question. This article argues that the Act and societal changes over the decades since the policy was first articulated have undermined the rationale for refusing to honor cohabitation agreements.

Cohabitation agreements in Illinois: Hewitt v. Hewitt

Illinois’ policy of promoting marriage as the only acceptable living arrangement for couples was the centerpiece of the Illinois Supreme Court’s decision in Hewitt v. Hewitt, which forbade recognition of cohabitation agreements more than three decades ago.12

In that case, the plaintiff, Victoria Hewitt, and the defendant, Robert Hewitt, lived together for 15 years without marrying and had three children together during that time.13 Upon moving in together, they agreed that Robert would “share his life, his future, his earnings and his property” with Victoria.14 When their relationship ended, Victoria brought suit to recover “an equal share of the profits and properties accumulated by the parties” under both contract and equitable theories.15

The Illinois Supreme Court held that recognition of Victoria’s claims would have contravened public policy as set forth by the state legislature in the Illinois Marriage and Dissolution of Marriage Act.16 Noting that the Act’s purpose was to “strengthen and preserve the integrity of marriage,” the court expressed concern that recognizing cohabitation agreements could make cohabitation more attractive than marriage because couples might seek property arrangements unavailable to married persons.17

The court also cited the legislature’s rejection of no-fault divorce, which suggested Illinois did not allow divorce as freely as other states.18 The justices thus refused to recognize breach of contract claims based on cohabitation.19

A policy shift represented by the Illinois Civil Union Act

Practitioners and scholars have taken issue with the reasoning and uneven application of Hewitt and called for its reconsideration.20 Even before the Civil Union Act became law, Jan Skelton noted that the policy underlying Hewitt had substantially eroded in the past 30 years with major changes in Illinois law, including the legislature’s adoption of no-fault divorce and decriminalization of cohabitation.21 She argued that, if the existence of these laws was “evidence of a strong pro-marriage policy,” the new rules “must be regarded as a change in that policy.”22

That argument is even stronger today because the Civil Union Act grants the same rights enjoyed by Illinois spouses to couples entering into civil unions, demonstrating the legislature’s willingness to acknowledge relationships outside of marriage. The Act is broad in its recognition of rights for individuals in non-marital relationships, providing very simply: “A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses....”23 The act is also broad in allowing both homosexual and heterosexual couples to enter into civil unions.24

Encouraging families, not “procreation.” In passing the Civil Union Act, the legislature implicitly rejected the traditional notion that marriage should be encouraged because it regularly produces children. The legislature resisted Senator Chris Lauzen’s urging that “[t]he reason marriage exists is that sexual intercourse between men and women regularly produces children. If intercourse did not naturally produce…children…[the] government would [not] have much reason, let alone a valid reason, to regulate people’s emotional unions.”25

It is questionable, however, whether the government actually has an interest in procreation in modern times.26 As one scholar noted, “concerns about overpopulation, limited resources, and environmental degradation diminish the interest in encouraging procreation.”27

Instead of encouraging procreation through marriage, legislators identified two main objectives of the Act: to grant equal protection to homosexual couples28 and to extend rights to couples in committed family relationships, regardless of gender.29 Acknowledging the shift in Illinois policy, Senator David Koehler stated, “[S]ociety does change its viewpoints....[T]he beauty about America is that we are able to incorporate that into our evolution as a nation and as a people.”30 Another senator said,

Today, we are engaged in the continuing struggle to defend the right of those in committed family relationships, irrespective of gender, to receive equal [rights]. I rise in support of the notion that it ought to be possible for individuals in such a committed relationship – again, irrespective of gender – to be treated as one would wish their family members to be treated.31

Telling the story of his Uncle Ray, who, after a couple of divorces, decided he would not marry again, Senator Rickey Hendon commented, “this bill is not just for same-sex couples, it’s for people who might not remarry for different reasons.”32 Although Uncle Ray never remarried, he stayed with “Aunt Sue” for over 30 years.33 Uncle Ray’s children and Aunt Sue did not get along, and when Uncle Ray was on his deathbed, Aunt Sue had no rights.34 The senator said,

Uncle Ray wanted Aunt Sue to handle his final arrangements, because who better than the person that has slept with you and lived with you and cooked your food and changed your dirty drawers? Who better will know what you want for your final arrangements than that person? But Aunt Sue didn’t have [any] rights [because] civil unions [were not] available to them. And he told me, “Rickey...you see my situation. Make sure yours is not like that.”35

As these senators’ statements show, proponents of the bill supported its enactment to extend rights to homosexual couples, as well as couples in committed family relationships who choose not to marry. Thus, the Illinois legislature is now focusing on a public policy of supporting “family” rather than traditional forms of procreation.

The Illinois legislature’s acceptance of alternative living arrangements and the movement away from promoting procreation severely weakens Hewitt’s underlying rationale. Further, because public policy is derived not only from legislation and judicial decisions, but also from the “customs, morals and notions of justice which may prevail in a state,”36 Illinois courts have a strong basis for reevaluating previous holdings in light of not only the Civil Union Act, but also the citizens’ views with which it is consistent.

Civil unions aren’t for everyone

If the civil union law indicates a shift in Illinois public policy, does it also obviate the need for cohabitation agreements? While the Civil Union Act offers a welcome legal alternative for couples who created cohabitation agreements in the past because they were prevented from getting married, the Act does not address all situations in which cohabitation agreements are needed. Also, many cohabiting couples are still likely to decline the opportunity to enter into a civil union and, without the ability to enter into cohabitation agreements, these couples are left unprotected.

Couples choose not to marry or to enter into civil unions for many reasons. For example, divorced or widowed persons may not want to lose pension or social security benefits by remarrying.37 Some couples choose not to marry or “unionize” because of tax advantages.38 Some simply do not want the full range of commitments that stem from either marriage or civil union. Others want to avoid any government label on their relationships.

In addition, while one purpose of the Civil Union Act is to give same-sex couples the right to form a legally recognized relationship, some couples may be wary of taking advantage of that opportunity. Some couples may not want to enter into a civil union if they would like to adopt a child from a jurisdiction that frowns upon adoptions by homosexuals or unmarried couples.39 Even in this more tolerant day, some gay individuals have not publicly acknowledged their sexual orientation and would not want to publicize the nature of their relationship with their partner.

In short, while the Civil Union Act is likely to reduce the number of couples who are cohabiting outside the bounds of marriage or civil union, many couples will decline that option but still want some legal clarity regarding their property rights. For them, a cohabitation agreement would provide the means of doing so.

Has the Civil Union Act extended the Hewitt rationale? Some might argue that the general policy underlying Hewitt – the promotion and protection of committed relationships – has actually expanded to include couples willing to enter into civil unions. Under this view, it would undermine public policy to allow couples to enter into cohabitation agreements that reject the full range of rights and responsibilities of marriage or civil union. But this logic is faulty.

First, many couples will choose not to enter into civil unions. They will cohabitate instead, and will likely commingle their property. Many will require the court’s assistance in resolving property disputes when their cohabitation ends.

Some of these cases could be easily revolved if the courts simply enforce contracts the couples previously agreed upon. Without those agreements, the parties’ property rights and remedies are unclear.40

The facts of Ayala v. Fox41 and Kaiser v. Fleming42 are illustrative. The issue in both was whether a plaintiff could recover mortgage payments on a home in which she and the defendant cohabited but that was titled in the defendant’s name alone.43 In Ayala, the second district held the plaintiff could not recover because she sought a right too closely related to marriage, “namely, an equitable interest in the ‘marital’ residence.”44 In Kaiser, however, the same court allowed recovery because the mortgage payments were an “investment.”45

Thus, cohabiting couples face a tough choice: enter into civil unions and acquire property rights but lose the advantages of remaining legally single, or stay single and unprotected. The state is also at risk. Individuals who rely on live-in partners for support may turn to the state for assistance when their relationships end.46

Child support, alimony, and cohabitation agreements. Some may object that cohabitation agreements allow individuals to pick and choose marriage-like rights and responsibilities, upsetting the balance provided by the legislature for marriage and civil unions. For instance, allowing couples to go beyond merely providing clarity about commingled property and into the realm of making agreements about alimony-like payments would undermine public policy.

However, couples already do this. Almost all marital and civil union rights and responsibilities may be contracted away with prenuptial agreements.47 The only responsibilities that cannot be contracted away are those to pay child support48 and alimony, unless no undue hardship would occur in the latter case.49

Even with cohabitation agreements, however, couples could not contract away the responsibility to pay child support: “The duty of a parent to support his or her minor child arises out of a natural relationship which transcends any contractual obligation....[C]hildren [must] receive support in the amount set forth in [the statutory] guidelines unless the court . . . allow[s] a deviation from those guidelines.”50

It is true that future alimony payments cannot be governed by cohabitation agreements, because cohabiting couples would not have the right to alimony in the first place.51 One cannot limit a responsibility that he or she does not have.

Thus, cohabiting couples could negotiate alimony payments, while couples entering civil unions or marriage could not. This arguably allows cohabiting couples to order from the “à la carte” menu of marriage-like rights and thus upset the balance provided by the legislature.

In fact, though, allowing cohabiters to negotiate such rights is actually a positive public policy for the state. Because cohabiters, unlike couples in marriages or civil unions, can only gain alimony-like rights, and cannot prospectively limit that obligation, the state would benefit from allowing contractual agreements regarding alimony-like payments. Allowing such agreements would lessen the burden on the state to support partners not capable of supporting themselves when cohabiting couples split.

Time to reevaluate

Illinois courts have long refused to recognize cohabitation agreements out of deference to the purported legislative intent to promote the sanctity of marriage. The legislature’s recent passage of the Civil Union Act, however, signals a shift in Illinois policy toward acceptance of alternative living arrangements.

Attorneys whose clients have cohabitation agreements should use this and related developments to argue that the agreements are enforceable. In addition, Illinois courts should reevaluate their anti-cohabitation agreement precedent, as the legislature has signaled that in modern society, “family,” and not only promoting procreation through marriage, matters.

Natalie T. Lorenz of Mathis, Marifian and Richter in Belleville is a recent graduate from Southern Illinois University School of Law. She thanks Professors Alice Noble-Allgire and William Drennan at SIU School of Law for their encouragement, advice, and support in the creation of this article.


  1. Marvin v. Marvin, 557 P.2d 106, 122 (Cal. 1976) (“[W]e 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 . . . .”).
  2. Rose M. Kreider, Increase in Opposite-sex Cohabiting Couples from 2009 to 2010 in the Annual Social and Economic Supplement (ASEC) to the Current Population Survey (CPS), 1 (Sept. 15, 2010) Housing and Household Economic Statistics Division Working Paper (U.S. Bureau of the Census); at http://www.census.gov/population/www/socdemo/Inc-Opp-sex-2009-to-2010.pdf.
  3. Id. at 3.
  4. Id. at 13, Table 1.
  5. Cohabitation agreements are “contract[s] outlining the property and financial arrangements between persons who live together.” Black’s Law Dictionary 296 (9th ed. 2009).
  6. Jennifer K. Robbennolt & Monica Kirkpatrick Johnson, Legal Planning for Unmarried Committed Partners: Empirical Lessons for a Preventive and Therapeutic Approach, 41 Ariz. L. Rev. 417, 436 (1999).
  7. Elizabeth A. Pope, Cohabitation: What to do When Couples Cannot or Do Not Marry, 20 J. Du Page Cnty. Bar Ass’n. 22, 23 (2007).
  8. Marvin, 557 P.2d at 111.
  9. Arlene G. Dubin, Prenups for Lovers: A Romantic Guide to Prenuptial Agreements 229-233 (Villard Books 2001) (listing states’ laws regarding enforcement of cohabitation agreements – all but Louisiana, Georgia, and Illinois recognize some type of cohabitation agreement).
  10. See Hewitt v. Hewitt, 77 Ill.2d 49, 62, 394 N.E.2d 1204, 1209 (1979) (“In thus potentially enhancing the attractiveness of a private arrangement over marriage, we believe that the appellate court decision in this case contravenes the Act’s policy of strengthening and preserving the integrity of marriage.”); Hernandez v. Robles, 805 N.Y.S.2d 354, 360 (N.Y.App. Div. 2005) (“The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal . . . to encourage sufficient marital childbearing to sustain the population and society….”).
  11. Illinois Religious Freedom Protection and Civil Union Act, 750 ILCS 75/1- 90 (West Supp. 2011).
  12. 77 Ill.2d at 66, 394 N.E.2d at 1211.
  13. Id. at 52, 394 N.E.2d at 1205.
  14. Id. at 53, 394 N.E.2d at 1205.
  15. Id. at 52, 394 N.E.2d at 1205.
  16. Id. at 66, 394 N.E.2d at 1211 (citing Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101 et seq (West 1999 & Supp. 2011)).
  17. Id. at 62, 394 N.E.2d at 1209 (quoting Illinois Marriage and Dissolution Act, 750 ILCS 5/102(2) (West 2011)).
  18. Id. at 63, 394 N.E.2d at 1210.
  19. Id. at 66, 394 N.E.2d at 1211.
  20. See Jan Skelton, Hewitt to Ayala: A Wrong Turn for Cohabitants’ Rights, 82 Ill. Bar J. 364, 365 (1994). See also Helen W. Gunnarsson, What To Do When There’s No “I Do,” 94 Ill. Bar J. 292, 294 (2006).
  21. Skelton, 82 Ill. Bar J. at 366-67.
  22. Id.
  23. 750 ILCS 75/20 (2011).
  24. 750 ILCS 75/10 (2011).
  25. Transcript at 53, Ill. 96th Gen. Assembly, Reg. Sess., Sen. Bill 1716, Dec. 1, 2010 (statement of Sen. C. Lauzen); at http://ilga.gov/senate/transcripts/strans96/09600136.pdf
  26. Pamela S. Katz, The Case for Legal Recognition of Same-Sex Marriage, 8 J. L. & Pol. 61, 100 (1999).
  27. Id.
  28. Transcript at 49, Ill. 96th Gen. Assembly, Reg. Sess., Sen. Bill 1716, Dec. 1, 2010 (statement of Sen. David Koehler describing the purpose of the bill as “a secular way of legally providing protection and benefits across the board to all of our citizens.”); at http://ilga.gov/senate/transcripts/strans96/09600136.pdf
  29. Id. at 47.
  30. Id. at 50.
  31. Transcript at 86, Ill. 96th Gen. Assembly, Reg. Sess., Sen. Bill 1716, December 1, 2010 (statement of Sen. Michael Noland); at http://ilga.gov/senate/transcripts/strans96/09600136.pdf.
  32. Transcript at 89, Ill. 96th Gen. Assembly, Reg. Sess., Sen. Bill 1716, December 1, 2010 (statement of Sen. Rickey Hendon); http://ilga.gov/senate/transcripts/strans96/09600136.pdf.
  33. Id.
  34. Id.
  35. Id.
  36. Skelton, 82 Ill. Bar J. at 366.
  37. Gunnarsson, 94 Ill. Bar J. at 293.
  38. Id.
  39. Richard Felice & Camilla B. Taylor, A First Look at the Illinois Civil Union Act, 54 Ill. State Bar Ass’n. Fam. L. Newsltr 3 (2011) at http://www.isba.org/sections/familylaw/newsletter/2011/02/afirstlookattheillinois
    civilunionact?destination=sections/familylaw/news
    letter/
    2011/02/afirstlookattheillinoiscivilunionact.pdf
    .
  40. See Gunnarsson, 94 Ill. Bar J. at 323; (and at 294: “These four cases illustrate how the Illinois Appellate Court has struggled to apply the Illinois Supreme Court’s reasoning in Hewitt.”).
  41. 206 Ill.App.3d 538, 564 N.E.2d 920 (2d Dist. 1990).
  42. 315 Ill.App.3d 921, 735 N.E.2d 144 (2d Dist. 2000).
  43. Ayala, 206 Ill.App.3d at 539, 564 N.E.2d at 921; Kaiser, 315 Ill.App.3d at 924; 735 N.E.2d at 146.
  44. Ayala, 206 Ill.App.3d at 542, 564 N.E.2d at 922.
  45. Kaiser, 315 Ill.App.3d at 926, 735 N.E.2d at 148.
  46. See Jared Richards, Turning a Blind Eye to Unmarried Cohabitants: A Look at How Utah Laws Affect Traditional Protections, 2007 Utah L. Rev. 215, 217. Of course, the people most likely to turn to the state for protection are those who have the least bargaining power in making express agreements. Id. at 227. Still, parties with the least bargaining power would have no right to alimony-like payments without such an agreement in Illinois. See Hewitt, 77 Ill.2d at 66, 394 N.E.2d at 1211. Express agreements can only help the situation by providing more rights than parties with less bargaining power would have without such agreements.
  47. Illinois Uniform Premarital Agreement Act, 750 ILCS 10/4 (West 2009).
  48. Id. at Section 10/4(b)
  49. Id. at Section 10/7(b).
  50. In re Paternity of Perry, 260 Ill.App.3d 374, 381-382, 632 N.E.2d 286, 291-92 (1st Dist. 1994).
  51. See Hewitt, 77 Ill.2d at 66, 394 N.E.2d at 1211 (cohabiting couples may not contract for marital rights).

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