Supreme Court of Illinois

“ The real thrust of plaintiff's argument here is that we should abandon the rule of illegality because of certain changes in societal norms and attitudes. It is urged that social mores have changed radically in recent years, rendering this principle of law archaic. It is said that because there are so many unmarried cohabitants today the courts must confer a legal status on such relationships. ”

“ We cannot confidently say that judicial recognition of property rights between unmarried cohabitants will not make that alternative to marriage more attractive by allowing the parties to engage in such relationships with greater security. As one commentator has noted, it may make this alternative especially attractive to persons who seek a property arrangement that the law does not permit to marital partners. ”

“ This seems to us another indication that public policy disfavors private contractual alternatives to marriage.
Lastly, in enacting the Illinois Marriage and Dissolution of Marriage Act, the legislature adopted for the first time the civil law concept of the putative spouse. The Act provides that an unmarried person may acquire the rights of a legal spouse only if he goes through a marriage ceremony and cohabits with another in the good-faith belief that he is validly married. When he learns that the marriage is not valid his status as a putative spouse terminates ”

“ 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. ”

“ Illinois appears to be one of three States retaining fault grounds for dissolution of marriage. (Ill. Rev. Stat. 1977, ch. 40, par. 401; Comment, Hewitt v. Hewitt, Contract Cohabitation and Equitable Expectations Relief for Meretricious Spouses, 12 J. Mar. J. Prac. & Proc. 435, 452-53 (1979) .) Certainly a significantly stronger promarriage policy is manifest in that action, which appears to us to reaffirm the traditional doctrine that marriage is a civil contract between three parties -- the husband, the wife and the State. ”

“ It is true, of course, that cohabitation by the parties may not prevent them from forming valid contracts about independent matters, for which it is said the sexual relations do not form part of the consideration. ”

“ 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? ”

“ 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. ”

“ The concern of both the Marvin court and the appellate court on this score is manifest from the circumstance that both courts found it necessary to emphasize marital values ("the structure of society itself largely depends upon the institution of marriage" ( Marvin v. Marvin (1976) , 18 Cal. ”

“ 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 psuedoconventional family relationship which impressed the appellate court here is irrelevant ”

“ L.Q. 101, 102-03 (1976) ; Nielson, In re Cary: A Judicial Recognition of Illicit Cohabitation, 25 Hastings L.J. 1226 (1974) ) reached the point at which the general welfare of the citizens of this State is best served by a return to something resembling the judicially created common law marriage our legislature outlawed in 1905?
Illinois' public policy regarding agreements such as the one alleged here was implemented long ago in Wallace v. Rappleye (1882) , 103 Ill. 229, 249, where this court said: "An agreement in consideration of future illicit cohabitation between the plaintiffs is void." ”