Building Families: Cohabitation Agreements Between GLBT Couples In Illinois

Building Families: Cohabitation Agreements Between GLBT Couples In Illinois
Mark J. Bereyso

Most states enforce cohabitation agreements between unmarried individuals, so long as sexual services do not form a part of the "consideration," or the basis of the bargain. Illinois is one jurisdiction where this principle, settled elsewhere, is subject to some question. Property agreements between lesbian and gay couples currently should be upheld as legal in Illinois. What is without question, certainly, is that GLBT couples are far better off with an agreement than they are deferring to the current state of legislation, which affords them absolutely no protection or benefits. This article briefly tracks the development and changes of the law in this area and concludes by citing the benefits of cohabitation or property agreements between GLBT couples.

Historical Case Law

In a 1979 decision, the Illinois Supreme Court refused to enforce an alleged oral agreement to share income and property between Victoria and Robert Hewitt, who resided together for fifteen years and had three children, on the ground that judicial enforcement of property rights between "knowingly unmarried cohabitants" would run counter to the purpose of the Illinois Marriage and Dissolution of Marriage Act and would violate the strong "pro-marriage" policy of the State of Illinois. Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). At the same time, the Illinois Supreme Court stated that cohabitation, by itself, did not prevent parties from forming valid contracts about "independent matters," apart from sexual relations. The scope and significance of Hewitt, as applied by lower courts since, has not been clear.

In Spafford v. Coats, 118 Ill. App. 3d 566 (2nd Dist. 1983), for example, the Illinois Appellate Court upheld Donna Spafford's claim to an interest in four vehicles which were financed by her but which were titled in Richard Coats' name, in order to maintain lower insurance premiums. The Court distinguished Spafford's claim from the Hewitt case by noting that Spafford furnished the funds to purchase the vehicles, and did not rely on her services as a homemaker or merely because of her cohabitation with Coats. The Spafford decision was thought to allow claims between cohabitants where a party contributed money toward a joint purchase, as opposed where one party claimed value for domestic services or rights arising from the cohabitation itself.

Seven years later, however, Anita Ayala claimed an interest in a house which she partly financed by co-signing a mortgage and on which she made monthly mortgage payments. The residence was titled in Lawrence Fox's name pursuant to an alleged oral arrangement whereby Fox would transfer title to both their names as co-owners in the event the two stopped living together. The Second District Appellate Court (the same court which decided Spafford) held that it did not matter whether Ayala contributed monetarily toward the house; she sought an ownership interest in "the real estate and personal property of her former boyfriend for the duration of their cohabitation" and such a claim was barred by the public policy as set forth in Hewitt. "If we were to agree with [Ayala], we would, in effect, be granting to an unmarried cohabitant substantially the same marital rights as those which married persons enjoy." Ayala's case was thrown out, as well as the predictability of when an unmarried cohabitant might be able to recover a share of jointly acquired property. Ayala v. Fox, 206 Ill. App. 3d 538 (2nd Dist. 1990).

This past August, the Second District Appellate Court again confronted the issue in Kaiser v. Fleming, 735 N.E.2d 144 (2nd Dist. 2000). Barbara Kaiser alleged that she was induced to invest $47,188.00 in residential real estate owned by Paul Fleming. She lived in the house, purchased and prepared meals, performed housework and also had a full-time job. Kaiser moved out after Fleming allegedly became verbally abusive and physically intimidating toward her. Fleming refused to return Kaiser's money, which he used to pay off the mortgage on the residence. Kaiser sued and obtained a partial victory.

The Appellate Court ruled that Kaiser could recover the money because "equity and good conscience" required Fleming to return it (note Kaiser was still not held to be part owner of the house). Fleming, predictably, raised the Ayala case to argue that Kaiser's claim contravened public policy. But the Court distinguished Ayala by saying that Kaiser's claim was "substantially independent" of her relationship with Fleming, because the payment was represented to be an "investment" and was made in a single lump sum. The Court noted that Kaiser did not allege claims based on the fact that the couple lived together as husband and wife.

One cannot help but note that Spafford, Ayala and Kaiser were decided by a division of the Illinois Appellate Court for suburban counties such as DuPage, McHenry, Lake, Kane and DeKalb. The First District Appellate Court (elected from Cook County) appears to approach the matter slightly differently. In the case of In re Marriage of Goldstein, 97 Ill. App. 3d 1023 (1st Dist. 1981), the First District Court considered whether Gayle Goldstein could introduce evidence that she supported her husband through medical school while they cohabited before their marriage. The Court said that the divorce court properly excluded this evidence under Hewitt, but also noted that an agreement to pool funds to purchase real estate would be enforceable "as a joint venture or partnership." Id., citing Jimenez v. Jimenez, 68 Ill. App. 3d 651 (1st Dist. 1979). The court also recited the Hewitt Court's statement 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 a part of the consideration."

More recently, in Crawford v. City of Chicago, 304 Ill. App. 3d 818 (1st Dist. 1999) the First District Appellate Court considered whether Illinois "pro-marriage" public policy (as stated in Hewitt) prohibited the City of Chicago from granting health insurance benefits to same-sex domestic partners of city employees. The court found that the General Assembly had never legislated the issue, and found "no public policy" prohibits the City from extending such benefits. The Court cited numerous legislative enactments that prohibited discrimination on the basis of sexual orientation.

Current Legal Climate

Cohabitation agreements between lesbian and gay couples in Illinois should be upheld as legal as a result of the legislative enactments and social changes since Hewitt was decided. The Hewitt Court relied heavily on provisions of the Illinois Marriage and Dissolution of Marriage Act which, at the time, did not permit no-fault divorce, invalidated common-law marriage and extended the benefits of marriage to a narrow class of couples who believed they were, in fact, married. Also, at the time, cohabitation between unmarried adults was illegal under Illinois' fornication statute. Since Hewitt was decided, however, cohabitation was decriminalized and no-fault divorce was adopted. Commentators have noted that these legislative amendments indicate a shift in the public policy relied upon by the Hewitt court. See J. Skelton, Hewitt to Ayala: A Wrong Turn for Cohabitants' Rights, 82 Ill. B. J. 364 (July 1994).

Social attitudes have also changed. As of 1994, 50% of Americans in their early 30's had cohabited, as had over 50% of the individuals entering their first marriage. Id. (citing sources). More recently, it has been reported that 7% of the nation's couples live in unmarried committed relationships, including 1.7 million lesbian and gay couples. J. Robbenholt and M. Johnson, Legal Planning for Unmarried Committed Partners, 41 Ariz. L. Rev. 417, 418 (1999) (citing sources).

The Illinois cases on cohabitation, furthermore, involved opposite-sex couples who could have married. The Hewitt court expressed serious concern that couples who could marry would opt not to marry, and instead rely on their private contractual arrangements. For lesbian and gay couples in Illinois, of course, legal marriage is not an option. The concern, therefore, that contractual arrangements will induce GLBT couples not to marry does not apply since marriage is not an alternative available to them.

The looming question is whether Illinois courts will invalidate property agreements between gay and lesbian couples because Illinois does not permit same-sex marriages. 750 ILCS 5/213.1 ("A marriage between two individuals of the same sex is contrary to the public policy of this State"). No recent case in the country, to our knowledge, has so held. Despite the passage of the quoted statute, we believe it is unlikely that Illinois courts would invalidate express, written property agreements on they ground they constituted a same-sex marriage. First, property agreements between lesbian and gay couples do not recreate marriage nor are they even comparable to marriage - they are a far cry from it. Marriage involves (among other legal ramifications) well over 1,250 federal and state statutes defining the rights and responsibilities of the couple, which a cohabitation agreement does not, and could not, replicate. To compare an agreement to pool resources and share property between cohabitants with the institution of marriage, indeed, cheapens the legal and social significance of the latter.

An Illinois court could not cite statutory authority disapproving of gays and lesbians living together or entering into contracts with respect to their household property. Indeed, more recent legislation and decisions, including Crawford, reflect a slow, but increasing acceptance toward GLBT families. See Jasniowski v. Rushing, 287 Ill. App. 3d 655 (1st Dist. 1997) (upholding Chicago ordinance prohibiting housing discrimination based on marital status despite religious objection), appeal denied and judgment vacated on jurisdictional grounds, 174 Ill. 2d 563 (1997); In re Petition of C.M.W. and L.A.W., 306 Ill. App. 3d 1061 (1st Dist. 1999) (allowing lesbian couples in two cases to jointly adopt children and calling a homophobic trial judge's conduct toward them "appalling"). It seems incongruous to hold, on one hand, that a public policy which allows a city to prohibit housing discrimination against unmarried couples and which allows suitable lesbian and gay couples to jointly adopt children, prohibits them, at the same time, from agreeing to such topics as the ownership of their television set.

To single out same-sex couples for adverse treatment (as a matter of public policy) when it comes to their ability to contract on property and financial matters, while simultaneously preventing those couples from obtaining the legal benefits of marriage, would also raise significant constitutional issues. Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996) (Colorado constitutional amendment, banning all state or municipal laws against discrimination toward gays and lesbians, violative of the equal protection clause of the Fourteenth Amendment); Baker v. State, 744 A.2d 864 (Vt. 1999) (denial of benefits and protections of marriage to same-sex couples violative of Vermont Constitution's "Common Benefit" clause); See Ill. Const. Art. 1, §§ 1, 2.

Benefits of Agreements between Gay and Lesbian Couples

There are numerous good reasons why a gay or lesbian couple should enter into a cohabitation or property agreement, despite the uncertainty. It is far better for a lesbian or gay couple to have an agreement than to defer to the current state of legislation, which affords them absolutely no protection or benefits. Under current law, GLBT couples are at the complete mercy of discriminatory laws in the event a dispute should ever arise.

There is less likelihood of a dispute, furthermore, when couples clearly define and express their intentions and agreements beforehand. In almost all of the cases cited, one of the parties relied on an unwritten, oral agreement. These are always difficult to prove and often lead to uncertainty, disagreement and litigation. If a couple agrees ahead of time to resolve any future dispute by way of private mediation and arbitration, there is even less likelihood that their agreement will ever see the light of a courtroom.

On a personal level, these agreements help strengthen relationships by encouraging partners to confront and discuss the serious issues they face in life. That is an incredibly important benefit independent of the question of enforceability or public opinion. Indeed, it is because of public opinion (and the fact that the protections and benefits afforded by marriage are withheld) that GLBT couples should minimally enter into private agreements between themselves.

Finally, and on a broader level, these agreements benefit the GLBT community as a whole. By taking the steps to formalize our relationships, we demonstrate the level of respect for our families that we demand from the rest of society. They are our way of building our families. Under current Illinois law, such agreements will not replicate marriage, but they do represent the most gay and lesbian couples can do for themselves, one another, and their community.

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