Society has become more accepting of couples who cohabitate without marriage, but laws do not yet treat them equally. Some states, including Illinois, prohibit common law marriages, in which couples act and present themselves as married but never obtain a legal union. While this may limit a couple’s rights when they are together, it also affects them when their relationship ends. Illinois laws state that couples who dissolve their marriages or civil unions are entitled to an equitable division of their shared properties. Because Illinois does not recognize common law marriages, cohabitating couples do not have the same property rights unless they created their own separation agreement.

Legal Precedent

Illinois’ Supreme Court has twice decided that cohabitating couples are not required to equitably divide their properties after their relationships end:

Across the country, more and more couples are delaying marriage in favor of cohabitation arrangements. Rather than tying the knot in a formal ceremony, couples are moving in together and sharing a household. While there is some indication that this social evolution is actually decreasing the divorce rate in certain demographic groups, there are certain dangers that could impact a cohabitating couple regarding property rights and other considerations. For one Cook County couple, the dangers went unrecognized for many years, arising only once the couple got married and, subsequently, divorced.

In re Marriage of Allen

Following a marriage that lasted only seven months, a couple in Cook County cross-petitioned for divorce citing irreconcilable differences. Just as the divorce was about to go to trial, the wife filed a motion for the trial court to consider the previous 13 years of cohabitation as, essentially, part of the marriage. As the basis of her argument, the wife pointed to an Illinois Supreme Court ruling in Blumenthal v. Brewer allowing certain common-law relief for a party in a same-sex relationship prior to the law that allowed same-sex couples to marry in Illinois. The wife in Allen asked for similar common law considerations, including a portion of the property her partner had acquired during their cohabitation but before their marriage.