                                       2016 IL 118781



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 118781)

        JANE E. BLUMENTHAL, Appellant, v. EILEEN M. BREWER, Appellee.


                                Opinion filed August 18, 2016.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

         Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in
     the judgment and opinion.

         Justice Theis concurred in part and dissented in part, with opinion, joined by
     Justice Burke.



                                          OPINION

¶1       In this case we are called upon to consider the continued viability and
     applicability of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held
     that Illinois public policy, as set forth in this State’s statutory prohibition against
     common-law marriage, precludes unmarried cohabitants from bringing claims
     against one another to enforce mutual property rights where the rights asserted are
     rooted in a marriage-like relationship between the parties.

¶2      The issue has arisen here in the context of an action brought by Dr. Jane E.
     Blumenthal for partition of the family home she shared and jointly owned with
     Judge Eileen M. Brewer. The couple had maintained a long-term, domestic
     relationship and raised a family together but had never married. Blumenthal sought
     partition of the residence when the relationship ended and she moved out.

¶3       The partition action itself presented no question under Hewitt. The problem
     arose when Brewer counterclaimed for various common-law remedies, including
     sole title to the home as well as an interest in Blumenthal’s ownership share in a
     medical group so that the couple’s overall assets would be equalized now that the
     couple had ended their relationship. Blumenthal moved to dismiss, asserting that
     the various counts of the counterclaim should fail as a matter of law under Hewitt,
     which rejected a woman’s suit to divide assets she accumulated with a man during a
     long-term relationship in which they lived together, had three children together, but
     never married. The circuit court agreed, and the counterclaim was dismissed in full.

¶4       The underlying partition action between Blumenthal and Brewer proceeded to
     final judgment. No appeal was or has been taken from that judgment. While the
     partition proceeding was following its course, however, Brewer pursued an appeal
     of the dismissal of her counterclaim pursuant to Illinois Supreme Court Rule 304(a)
     (eff. Mar. 8, 2016), arguing that Hewitt should be rejected and should not bar any of
     the relief she sought.

¶5       The appellate court agreed with Brewer’s position. It rebuffed Hewitt’s holding
     as outmoded and ill-considered, undertook its own public policy analysis, and held
     that the public policy of prohibiting unmarried domestic partners from bringing
     common-law claims against one another no longer exists in current law.
     Accordingly, it vacated the circuit court’s dismissal of Brewer’s counterclaim and
     remanded the matter to the circuit court to consider additional arguments raised by
     the parties. 2014 IL App (1st) 132250, ¶ 40.

¶6       This court allowed Blumenthal’s petition for leave to appeal. Ill. S. Ct. R. 315
     (eff. July 1, 2013). We also granted the American Civil Liberties Union of Illinois
     and Lambda Legal Defense and Education Fund, Inc., leave to file a friend of the
     court brief in support of Brewer. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the
     reasons that follow, we now vacate in part and reverse in part the judgment of the
     appellate court and affirm the judgment of the circuit court.




                                             -2-
¶7                                       BACKGROUND

¶8         This litigation began in 2010 when Blumenthal filed her verified complaint for
       partition pursuant to section 17-101 of the Code of Civil Procedure (735 ILCS
       5/17-101 et seq. (West 2012)) in the circuit court of Cook County. The portion of
       the partition action relevant here was directed at the parties’ South Kimbark
       residence (hereinafter sometimes referred to as the Chicago home), which
       Blumenthal jointly owned with Brewer, who had been her domestic partner since
       approximately 1981. Blumenthal’s complaint requested that “a fair division and
       partition of [the] property be made between the parties *** according to their
       respective rights and interests.” The complaint further requested, in the alternative,
       that if the property could not be divided without manifest injustice to the parties in
       interest, then it should be sold by or under direction of the court, with the proceeds
       of the sale to be divided among the parties “according to their respective rights or
       interests in such proceeds as ascertained and declared” by the court.

¶9         Brewer’s counterclaim, which is the focus of this appeal, was premised on the
       couple’s domestic relationship, which Brewer characterized as “identical in every
       essential way to that of a married couple.” As finally amended, the counterclaim
       contained five counts. Counts I, II, IV, and V all pertained directly to the
       disposition of the parties’ home in the underlying partition action. Specifically,
       they sought to guide the court with respect to how the party’s respective rights and
       interests in that property should be ascertained and valued and how the property
       should be divided. Count I sought imposition of a constructive trust based on unjust
       enrichment. Court II argued that the house should be divided based on principles of
       equitable division. Count IV asserted that in allocating the value of the house, the
       court should factor in amounts expended by Brewer to maintain it after a certain
       date. Invoking principles of quantum meruit, count V claimed that apportionment
       of the home’s value should take into account the value of Brewer’s time in making
       sure the property was adequately secured, maintained, and repaired. Count III
       sought a constructive trust over the annual net earnings or the sale of Blumenthal’s
       share of her medical practice, or in the alternative, restitution of funds that
       Blumenthal used from the couple’s joint account to purchase the medical practice.

¶ 10       In the circuit court, Blumenthal successfully argued that all counts of Brewer’s
       counterclaim were barred as a matter of law by this court’s decision in Hewitt v.
       Hewitt, 77 Ill. 2d 49 (1979). As noted earlier, Hewitt held that Illinois public policy,
       as set forth in this state’s statutory prohibition against common-law marriage,
                                                -3-
       precludes knowingly unmarried cohabitants from bringing claims against one
       another to enforce mutual property rights where those rights are rooted in a
       marriage-like relationship between the parties.

¶ 11        On appeal to the appellate court, Brewer contended that dramatic shifts in
       public policy had rendered this court’s decision in Hewitt obsolete and that Hewitt
       no longer represented an accurate view of how Illinois law should treat such a claim
       today. Brewer contended that at the time Hewitt was decided, it was public policy
       to treat unmarried relationships as illicit, but in the decades since Hewitt, the
       Illinois legislature had repealed the criminal prohibition on nonmarital
       cohabitation, prohibited differential treatment of marital and nonmarital children,
       adopted no-fault divorce, established civil unions for both opposite-sex and
       same-sex partners, and extended other significant protections to nonmarital
       families. Thus, Brewer maintained that in light of these profound changes, Hewitt’s
       restriction on common-law claims being brought by unmarried partners has been
       implicitly overruled and that continued application of Hewitt would directly
       contravene the current policy of this state.

¶ 12       Blumenthal responded that Hewitt was not based on a legislative policy to
       stigmatize or penalize cohabitants for their relationship, but was instead based on a
       statute that abolished common-law marriage in this jurisdiction and is now known
       as section 214 of the Illinois Marriage and Dissolution of Marriage Act (Marriage
       and Dissolution Act) (750 ILCS 5/214 (West 2010) (“Common law marriages
       contracted in this State after June 30, 1905 are invalid.”)). Blumenthal contended
       that Hewitt remains good law because it gives effect to Illinois’s 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.
       In Blumenthal’s view, reversing the circuit court’s dismissal order would require
       the appellate court to overrule Hewitt and its progeny, something it had no authority
       to do, and, in effect, resurrect common-law marriage in Illinois.

¶ 13       In a detailed discussion, the appellate court found some merit in both parties’
       arguments, but ultimately agreed with Brewer’s claims finding that the primary
       basis for the result in Hewitt “ceased to exist.” 2014 IL App (1st) 132250, ¶¶ 18, 25.
       To support its claim that Hewitt is now obsolete, the appellate court adopted
       Brewer’s list of post-Hewitt policy changes and laws that relate to property rights of
       married or unmarried couples. Id. ¶¶ 30, 33-34. In particular, the appellate court
       gave considerable weight to the fact that in the decades since Hewitt was decided,
                                               -4-
       the Illinois legislature has repealed the criminal prohibition on nonmarital
       cohabitation, prohibited differential treatment of marital and nonmarital children,
       adopted no-fault divorce, established civil unions for both opposite-sex and
       same-sex partners, and extended other significant protections to nonmarital
       families. Id. ¶¶ 23-27, 33-34.

¶ 14       The appellate court also disagreed with the policy finding in Hewitt, arguing
       that Hewitt “may have the contrary effect [of discouraging cohabitation and
       encouraging marriage because] refusing to hear claims between unmarried
       cohabitants creates an incentive for some to not marry.” Id. ¶ 32. Thus, the
       appellate court believed that “[a] cohabitant who by happenstance or design takes
       possession or title to jointly acquired assets is able to retain them without
       consequence when their ‘financially vulnerable’ counterpart is turned away by the
       courts.” Id.

¶ 15       Finding that Hewitt’s common-law ban was misplaced, the appellate court
       determined that Brewer’s counterclaim was not an attempt to retroactively redefine
       the parties’ relation in order to claim the benefits of a legal marriage, but rather a
       claim to have similar common-law property rights as others that were not in a
       cohabiting, unmarried relationship. Id. ¶ 38. Accordingly, the appellate court
       vacated the circuit court’s Hewitt-based dismissal of the counterclaim and
       remanded the matter to the circuit court to consider additional arguments raised by
       the parties. Id. ¶ 40.

¶ 16      We will discuss the remaining relevant facts of this case within our discussion.



¶ 17                                       ANALYSIS

¶ 18       Blumenthal’s central argument on this appeal is that the circuit court’s order
       dismissing Brewer’s counterclaim was proper and should not have been disturbed
       because it was mandated by this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49
       (1979), and the prohibition against common-law marriage set forth in section 214
       of the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)). Blumenthal
       asserts that in reversing the circuit court and remanding for further proceedings, the
       appellate court misread Hewitt, improperly reinstated common-law marriage in
       contravention of Illinois law, and usurped public policy determinations that


                                               -5-
       properly belong to the legislature. Blumenthal also criticizes the appellate court’s
       decision for improperly extending principles of unjust enrichment.

¶ 19       In undertaking our review, we begin by noting that the circuit court’s rejection
       of Brewer’s counterclaim was made in the context of a motion to dismiss under
       section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).
       Such motions challenge the legal sufficiency of a pleading based on defects
       apparent on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13.
       In ruling on a section 2-615 motion, a court must accept as true all well-pleaded
       facts and all reasonable inferences that may be drawn from those facts. Beacham v.
       Walker, 231 Ill. 2d 51, 57-58 (2008). It is well understood that the critical inquiry is
       whether the allegations of the complaint, when construed in the light most
       favorable to the plaintiff, are sufficient to establish a cause of action upon which
       relief may be granted. Such orders granting motions to dismiss under section 2-615
       are reviewed de novo. Bonhomme v. St. James, 2012 IL 112393, ¶ 34.



¶ 20                           Counterclaim Counts I, II, IV, and V

¶ 21       As a preliminary matter, Blumenthal contends the issue of whether counts I, II,
       IV, and V of Brewer’s counterclaim are viable under Hewitt should not have been
       addressed by the appellate court and is not properly before us. We agree. As to
       those four counts, the appellate court’s judgment is fatally flawed for two
       fundamental reasons unrelated to Hewitt.

¶ 22        First, the appellate court lacked jurisdiction to entertain the appeal from
       dismissal of those counts. The Illinois Constitution confers on the appellate court
       jurisdiction to hear appeals from all final judgments entered in the circuit court. See
       Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a
       Circuit Court are a matter of right to the Appellate Court”). The constitution also
       grants this court the right to “provide by rule for appeals to the Appellate Court
       from other than final judgments.” Id. Accordingly, absent a supreme court rule, the
       appellate court is without jurisdiction to review judgments, orders, or decrees that
       are not final. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9.

¶ 23       The ruling at issue here was brought before the appellate court based on Illinois
       Supreme Court Rule 304(a) (eff. Feb. 26, 2010), which authorizes appeals from
       final judgments that do not dispose of an entire proceeding “if the trial court has

                                                -6-
       made an express written finding that there is no just reason for delaying either
       enforcement or appeal or both.” An order or judgment is considered to be final and
       appealable for purposes of this rule if it terminates the litigation between the parties
       on the merits or disposes of the rights of the parties, either on the entire controversy
       or a separate part thereof. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008).
       The purpose of the rule is “ ‘to discourage piecemeal appeals in the absence of a
       just reason and to remove the uncertainty which existed when a final judgment was
       entered on fewer than all of the matters in controversy.’ ” Id. (quoting Marsh v.
       Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990)).

¶ 24       Although the circuit court in this case made the written finding required by Rule
       304(a), that finding is not dispositive. By its terms, Rule 304(a) applies only to final
       judgments or orders. The special finding contemplated by the rule will make a final
       order appealable, but it can have no effect on a nonfinal order. Kellerman v. Crowe,
       119 Ill. 2d 111, 115 (1987). If the order is in fact not final, inclusion of the special
       finding in the trial court’s order cannot confer appellate jurisdiction. EMC
       Mortgage Corp., 2012 IL 113419, ¶ 14.

¶ 25       The circuit court’s action dismissing counts I, II, IV, and V of Brewer’s
       counterclaim did not qualify as a final judgment or order. As mentioned above, to
       be considered final and appealable for purposes of Rule 304(a), a judgment or order
       must terminate the litigation between the parties on the merits of the cause, so that,
       if affirmed, the trial court only has to proceed with execution of the judgment.
       Kellerman, 119 Ill. 2d at 115. While the order need not dispose of all the issues
       presented by the pleadings, it must be final in the sense that it disposes of the rights
       of the parties, either upon the entire controversy or upon some definite and separate
       part thereof. Id. The circuit court’s dismissal of counts I, II, IV, and V did not meet
       that requirement.

¶ 26       Counts I, II, IV, and V arose from the same set of operative facts and sought
       precisely the same thing as the underlying cause of action asserted by Blumenthal:
       division of the value of the parties’ Chicago home. Rather than being distinct and
       separate from Blumenthal’s action, these counts merely advanced different
       analytical approaches for determining how the home or its proceeds should be
       allocated between the parties. They were, in effect, different iterations of the very
       same claim. When they were dismissed, the ultimate question—how the value of
       the residence should be split—remained unresolved. The dismissal served only to
       narrow the criteria applicable to that decision.
                                                -7-
¶ 27       Although we have found no cases directly on point, our appellate court has
       recognized that where one claim based on the same operative facts is stated
       differently in multiple counts, the dismissal of fewer than all counts is not a final
       judgment as to any of the party’s claims as required by Rule 304(a). See Davis v.
       Loftus, 334 Ill. App. 3d 761, 766 (2002). Similarly, we have held that where an
       order disposes only of certain issues relating to the same basic claim, such a ruling
       is not subject to review under Rule 304(a). To the contrary, permitting separate
       appeals of such orders promotes precisely the type of piecemeal appeals Rule
       304(a) was designed to discourage. See In re Marriage of Leopando, 96 Ill. 2d 114,
       119-20 (1983). Based on this reasoning, the portion of the circuit court’s order
       dismissing counts I, II, IV, and V of Brewer’s counterclaim was not appealable
       under Rule 304(a).

¶ 28        Second, even if the appellate court had jurisdiction to review the dismissal of
       counts I, II, IV, and V, its resolution of the appeal was improper and cannot stand.
       As discussed, the appellate court’s conclusion that the circuit court erred in
       dismissing those counts was predicated on its repudiation of this court’s decision in
       Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court’s rejection of Hewitt was
       tantamount to overruling that decision. However, overruling a decision by the
       Illinois Supreme Court is an action the appellate court has no authority to take.
       People v. Artis, 232 Ill. 2d 156, 164 (2009) (“The appellate court lacks authority to
       overrule decisions of this court, which are binding on all lower courts.”). While the
       appellate court was free to question Hewitt and recommend that we revisit our
       holding in the case, under the judicial system created by the Illinois Constitution, it
       could not, itself, declare that one of our decisions was no longer controlling
       authority. As we have recently explained,

          “The judicial article of the Illinois Constitution of 1970, like its predecessor in
          the constitution of 1870, creates a three-tiered court system, with the appellate
          court sitting in review of the circuit courts, and the supreme court sitting in
          review of the appellate and circuit courts. Ill. Const. 1970, art. VI. A
          fundamental principle flows from this hierarchical structure: ‘Where the
          Supreme Court has declared the law on any point, it alone can overrule and
          modify its previous opinion, and the lower judicial tribunals are bound by such
          decision and it is the duty of such lower tribunals to follow such decision in
          similar cases.’ ” (Emphasis in original.) Price v. Philip Morris, Inc., 2015 IL
          117687, ¶ 38 (quoting Agricultural Transportation Ass’n v. Carpentier, 2 Ill.
          2d 19, 27 (1953)).
                                                -8-
¶ 29       Accordingly, even if the appellate court disagreed with Hewitt, it remained
       bound by that decision and should have left it to this court to reassess the decision’s
       validity.

¶ 30       Because the appellate court’s reversal of the dismissal of counts I, II, IV, and V
       of Brewer’s counterclaim was predicated on the exercise of jurisdiction it did not
       possess and the repudiation of legal precedent it had no authority to overrule, we
       would normally be inclined to simply vacate its ruling as to those counts and
       remand to the circuit court for further proceedings. In this case, however, a remand
       would serve no purpose. That is so because while Brewer was pursuing this appeal,
       she and Blumenthal continued to litigate the underlying partition action. The matter
       of how the home should be divided has now been finally determined by the circuit
       court.

¶ 31        Initially, Brewer recognized that resolution of the underlying partition action
       could affect her counterclaim and therefore moved for a stay of the proceedings on
       the partition until appeal of the dismissal of her counterclaim was resolved.
       Although the circuit court denied the stay, it indicated that the question of a stay
       could be revisited if Brewer posted an appeal bond. From the record, it appears that
       Brewer elected not to exercise that option. Instead, the partition action proceeded to
       trial on the merits in August 2014.

¶ 32        The partition trial was conducted over a three-day period. In the course of the
       trial, testimony was presented regarding when the home was purchased, who
       contributed to the earnest money and down payment for the purchase, which of the
       parties and their children lived in the home and when, the cost of upkeep and
       repairs and who paid those costs, how and when certain other personal and real
       property was divided by the parties, the disposition of inheritances Brewer received
       from her parents, and how Brewer and Blumenthal handled their respective
       finances, including joint investment accounts. The court heard the circumstances of
       the parties’ breakup; listened to analyses of real estate values and market conditions
       in the neighborhood; and received evidence regarding the parties’ income taxes and
       the source and amounts of mortgage payments, insurance, utilities and taxes on the
       property. The circuit court then took the matter under advisement.

¶ 33       On October 9, 2014, the circuit court reconvened to share its findings with the
       parties. After dealing with some minor issues regarding various items of personal
       property, including photographs and skis, the court turned to the issue of the home.

                                                -9-
       It concluded that the parties had held the property as tenants in common; that its
       current market value was $1 million; that Blumenthal had paid the earnest money
       and down payment for the purchase of the home, an amount which totaled
       $235,000; and that Blumenthal was entitled to return of that sum.

¶ 34       Subtracting the $235,000 from the home’s $1 million value left $765,000. The
       court held that this sum should be split evenly between the parties, giving each of
       them a claim to $382,500 of the home’s value. The court further held, however, that
       this distribution was subject to various adjustments. Noting that this had been a
       romantic domestic relationship that had gone sour, the court rejected Blumenthal’s
       argument that Brewer should have to pay her rent for the time she remained in the
       home after Blumenthal decided to move out. At the same time, the court thought it
       inappropriate to compensate Brewer for the value of the work she did on the home
       herself. On the other hand, the court opined that Brewer should receive credits for
       mortgage payments, taxes, and insurance, as well as for various maintenance and
       repair expenses incurred by her that were necessary for the home’s proper upkeep.
       The court computed these credits to total $151,700.55, which it believed should be
       deducted from Blumenthal’s $382,500 share of the home’s net value after
       subtraction of the down payment and earnest money, and added to Brewer’s share.
       This left Blumenthal with $230,799.45 of what the court referred to as the home’s
       “equity” and Brewer with $534,200.55. Finally, the court indicated that it would
       give Brewer the option of buying out Blumenthal’s share of the Chicago home. If
       Brewer declined to exercise that option, the property would be put on the market
       and sold. A written order to that effect was entered by the court after the hearing
       concluded.

¶ 35       Neither party appealed. Instead, Brewer elected to buy out Blumenthal’s share
       in accordance with the valuations made by the circuit court. According to public
       records of which we can take judicial notice, Blumenthal and Blumenthal’s civil
       union partner issued a quitclaim deed to Brewer in January 2015. Brewer
       subsequently conveyed her interest in the home to a trust.

¶ 36      Because no appeal was taken from the court’s judgment setting the value of the
       home and allocating the home’s equity between the parties and because the
       property has now been conveyed in a manner chosen by the parties in accordance
       with the court’s judgment, Brewer’s arguments regarding the legal sufficiency of
       counts I, II, IV, and V of her counterclaims have been rendered moot. A matter
       becomes moot on review when, because of events occurring after the appeal was
                                             - 10 -
       filed, there is no longer an actual controversy or the reviewing court cannot grant
       the complaining party effectual relief. In re Marriage of Donald B., 2014 IL
       115463, ¶ 23. Such is the case here.

¶ 37       Whatever our view might be of the merits of Brewer’s legal theories on which
       counts I, II, IV, and V of her counterclaim are based, the outcome of the case would
       not change. As noted earlier, those theories were all directed at how the value of the
       home should be divided. That division has now been made and is final. Brewer
       obtained financing, the trust she established now owns the house, and Blumenthal
       has been paid for her interest in it. The deal is done. The object of the controversy
       has been settled.

¶ 38       Brewer has suggested that the matter is not moot because if we ruled in her
       favor, the circuit court could undo its final judgment, set aside the partition, and
       consider anew how the value of the home should be divided. Pressed at oral
       arguments, Brewer did not explain (and we still do not see) how this could possibly
       be so.

¶ 39       The finality of the judgment in the underlying partition action was not affected
       by Brewer’s election to seek review of the dismissal of her counterclaim by means
       of Rule 304(a). Had Brewer wanted to avoid that result and defer final resolution of
       how the value of the home should be allocated until the viability of her alternate
       theories was resolved, she could have immediately appealed the circuit court’s
       denial of her motion to stay the underlying case. Under established Illinois law, the
       denial of a stay of trial court proceedings is treated as a denial of a request for a
       preliminary injunction and is appealable as a matter of right under Illinois Supreme
       Court Rule 307(a)(1) (eff. Feb. 26, 2010). See, e.g., Cholipski v. Bovis Lend Lease,
       Inc., 2014 IL App (1st) 132842, ¶¶ 32-33; Estate of Bass v. Katten, 375 Ill. App. 3d
       62, 69-70 (2007).

¶ 40       In addition, and more importantly, if Brewer believed that the circuit court’s
       subsequent ruling disposing of the home was legally deficient for failing to take
       into account the theories advanced in her counterclaim, she could have appealed the
       circuit court’s final judgment in the underlying case pursuant to Illinois Supreme
       Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,
       2015)). She did not do that either. Rather, she accepted the circuit court’s partition
       ruling, bought out Blumenthal’s share of the property for the amount specified by
       the court, and continued to reside there, as the court gave her the option of doing.

                                               - 11 -
¶ 41       Having pursued this strategy, Brewer would be foreclosed from pursuing
       counts I, II, IV, and V of her counterclaim even if we agreed that those counts
       should not have been dismissed based on Hewitt. Because the partition action
       proceeded to final judgment and no appeal from that judgment was taken,
       reinstatement of counts I, II, IV, and V of the counterclaim would be tantamount to
       permitting Brewer to proceed with a new and separate action with respect to
       division of the home’s value. That is impermissible.

¶ 42        Under the doctrine of res judicata, a final judgment on the merits rendered by a
       court of competent jurisdiction acts as a bar to a subsequent suit between the parties
       involving the same cause of action. River Park, Inc. v. City of Highland Park, 184
       Ill. 2d 290, 302 (1998). A cause of action is defined by the facts which give rise to a
       right to relief. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 10. “ ‘[S]eparate
       claims will be considered the same cause of action for purposes of res judicata if
       they arise from a single group of operative facts, regardless of whether they assert
       different theories of relief.’ ” Hayashi v. Illinois Department of Financial &
       Professional Regulation, 2014 IL 116023, ¶ 46 (quoting River Park, Inc. v. City of
       Highland Park, 184 Ill. 2d at 311). These principles extend to claims arising from
       the same operative facts as the plaintiff’s claim that were or could have been raised
       by the defendant, and it has been held that res judicata bars a subsequent action if
       successful prosecution of that action would, in effect, nullify the judgment entered
       in the original action. See Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 530-31
       (2005). That, of course, is precisely what would happen if the appellate court’s
       reinstatement of counts I, II, IV, and V were upheld by this court and Brewer
       ultimately prevailed.

¶ 43       Moreover, even if resuscitation of counts I, II, IV, and V of the counterclaim
       were viewed as a mere continuation of the same proceeding rather than
       commencement of a new action, revisiting the merits of those counts would still be
       foreclosed. As previously indicated, Brewer could have sought an immediate
       appeal of the circuit court’s denial of her request for a stay of the partition action or
       filed an appeal from the circuit court’s judgment finally disposing of the partition
       action on the merits. She did neither. Instead, Brewer permitted that judgment to
       stand unchallenged, accepted the court’s division of the home’s value and
       purchased Blumenthal’s interest in the property in accordance with the circuit
       court’s ruling. Where, as here, a party fails to challenge a legal decision when it has
       the opportunity to do so, that decision, as a general rule, becomes “the law of the
       case for future stages of the same litigation, and [that party is] deemed to have
                                                - 12 -
       waived the right to challenge that decision at a later time. [Citations.]” (Internal
       quotation marks omitted.) Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540, 547
       (1997). The law-of-the-case doctrine bars relitigation of issues of both law and fact.
       Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.
       Similarly, it is well established that if a party proceeds to trial and voluntarily
       accepts the benefit of a judgment in his or her favor with respect to the disposition
       of property, that party is precluded from later challenging that judgment, including
       sufficiency of the property’s valuation. See County of Cook v. Malysa, 39 Ill. 2d
       376, 379 (1968). Brewer, therefore, is precluded from further litigating the
       disposition of the parties’ home. Accordingly, the appellate court should not have
       entertained her appeal from the dismissal of counts I, II, IV, and V of her
       counterclaim, and its ruling as to the viability of those counts must be vacated.



¶ 44                                 Counterclaim Count III

¶ 45       Unlike counts I, II, IV, and V, count III of Brewer’s counterclaim asserts a
       separate and distinct claim that does not concern the partition or value of the
       Chicago home. Instead, count III requests that the court impose a “Constructive
       Trust on Blumenthal’s Medical Practice to Remedy Unjust Enrichment Or, in the
       Alternative, for Restitution.” Therefore, the portion of the circuit court’s order
       dismissing count III of Brewer’s counterclaim was final and appealable under Rule
       304(a). See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987).

¶ 46       According to count III, “[t]hroughout the course of their relationship, Brewer
       and Blumenthal commingled their savings and investments.” It was the funds from
       this joint account that went toward the purchase of Blumenthal’s ownership interest
       in her medical practice group, Gynecologic Specialists of Northwestern, S.C.
       (GSN). Brewer contends that she allowed Blumenthal to use their joint account for
       this investment with the reasonable understanding and expectation that she,
       Brewer, would continue to benefit from the earnings derived from GSN. Once the
       couple ended their relationship in 2008, these financial benefits ceased, and
       Blumenthal retained the entire interest in the medical group, thereby keeping all of
       the earnings from the medical practice. Based on these allegations, Brewer claims
       that Blumenthal is unjustly enriched. Therefore, Brewer requests that this court
       create a constructive trust from Blumenthal’s share of the annual net earnings of the
       medical group or any portion of the proceeds from any sale of Blumenthal’s interest

                                               - 13 -
       in the group that was attributable to Brewer’s earnings or inheritance during their
       relationship and that this court award her the annual net earnings of GSN
       attributable to her as well as award her this portion of the proceeds from any sale of
       Blumenthal’s interest in GSN.

¶ 47        “ ‘A constructive trust is one raised by operation of law as distinguished from a
       trust created by express agreement between the settlor and the trustee.’ ” Suttles v.
       Vogel, 126 Ill. 2d 186, 193 (1988) (quoting Perry v. Wyeth, 25 Ill. 2d 250, 253
       (1962)). A constructive trust is an equitable remedy, which may be imposed where
       the person in possession of the property would be unjustly enriched if he or she
       were permitted to retain that property. In re Liquidation of Security Casualty Co.,
       127 Ill. 2d 434, 447 (1989). The sole duty of the constructive trustee is to transfer
       title and possession of the wrongfully acquired property to the beneficiary.
       Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 299 (2000).

¶ 48       Blumenthal argues that the Medical Corporation Act (805 ILCS 15/1 et seq.
       (West 2010)) and the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West
       2010)) prohibit Brewer, a licensed attorney, from being a beneficiary of a
       constructive trust created on her ownership interest in GSN, unless Brewer is also a
       licensed doctor. Under the Medical Corporation Act, anyone who is not licensed
       pursuant to the Medical Practice Act is prohibited from having any part in the
       “ownership, management, or control” of a medical corporation. 805 ILCS 15/13
       (West 2010). In addition, fee-splitting arrangements between a licensed medical
       doctor and a nonlicensed medical doctor are likewise prohibited under the Medical
       Practice Act. 225 ILCS 60/22.2 (West 2010).

¶ 49        Brewer’s counterclaim explains that GSN is an Illinois corporation that
       characterizes itself as an all-woman practice of experienced physicians dedicated to
       providing comprehensive health care to women. Blumenthal is licensed under the
       Medical Corporation Act as a medical doctor, which allowed her to be one of the
       six owners of GSN. The statutory rule is clear: As an owner of the medical group,
       Blumenthal is prohibited from transferring any of her ownership interest or any
       proceeds from a sale of her interest in GSN to a nonlicensed medical doctor. These
       prohibitions are similar to the prohibitions of a lawyer forming a partnership with a
       nonlawyer if any of the activities of the partnership consist of the practice of law
       (Ill. R. Prof’l Conduct (2010) R. 5.4(b) (eff. Jan. 1, 2010)) or the prohibition of
       sharing legal fees with a nonlawyer (Ill. R. Prof’l Conduct (2010) R. 5.4(a) (eff.
       Jan. 1, 2010)). Because Brewer is not a licensed medical doctor, transferring title
                                               - 14 -
       and possession of Blumenthal’s interest in GSN through a constructive trust to
       Brewer is unattainable due to the prohibitions of the Medical Corporation Act and
       the Medical Practice Act.

¶ 50       In the alternative, Brewer requests the common-law remedy of restitution for an
       undisclosed amount of funds she deposited into the couple’s joint account since the
       year 2000, which was used to purchase Blumenthal’s ownership interest in GSN.
       Brewer raises the same arguments she made before the appellate court, which ruled
       in her favor, permitting her to bring common-law remedies against Blumenthal.
       Therefore, Brewer requests this court uphold the appellate court’s review of the
       longstanding public policy in Illinois barring unmarried, cohabiting partners from
       seeking common-law property rights if the claims are not independent from the
       parties’ relationship.

¶ 51        To understand Illinois’s public policy concerning the common-law rights of
       unmarried, cohabiting couples, we must begin with a review of the history in
       Illinois concerning the matter—a history the parties and amici have extensively
       outlined in their briefs. One thing is certain as argued in the briefs: Illinois’s
       statutory prohibition of common-law marriage and this court’s prior decision in
       Hewitt are imperative to resolving the issue before this court. We therefore turn to
       that matter.

¶ 52       Common-law marriages are invalid in Illinois and have been since the early
       part of the last century. The prohibition is statutory and unequivocal. Section 214 of
       the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)) expressly
       provides that “[c]ommon law marriages contracted in this State after June 30, 1905
       are invalid.”

¶ 53       Prior to this legislative enactment, the doctrine of common-law marriage was a
       judicially sanctioned alternative to formal marriage. People v. Shaw, 259 Ill. 544,
       548 (1913). In Hewitt, decided in 1979, this court undertook an extensive and
       in-depth public policy analysis with respect to the statutory change by which
       common-law marriages were abolished.

¶ 54       At issue in Hewitt was whether public policy barred the granting of
       common-law relief to plaintiff Victoria Hewitt, who was in a cohabiting,
       marriage-like relationship with the defendant, Robert Hewitt. Hewitt, 77 Ill. 2d at
       52. Victoria and Robert commenced their relationship in 1960, while they were
       attending college in Iowa. Id. at 53. After Victoria became pregnant, Robert
                                               - 15 -
       proclaimed to Victoria “that they were husband and wife and would live as such, no
       formal ceremony being necessary, and that he would ‘share his life, his future, his
       earnings and his property’ with her.” Id. The parties immediately began holding
       themselves out as a married couple. Id. Relying on Robert’s promises, Victoria
       began to assist in paying for Robert’s education and establishing a dental practice,
       helping him earn more than $80,000 annually and accumulate large amounts of
       property, owned either jointly with Victoria or separately. Id. at 53-54.

¶ 55       After several years together, the relationship became sour, and Victoria filed for
       divorce, which the circuit court dismissed because the parties were never married.
       Id. at 52. Victoria filed an amended complaint that sought an equitable one-half
       share of the parties’ assets, based upon theories of implied contract, constructive
       trust, and unjust enrichment, which resulted from their “family relationship.” Id. at
       53. The circuit court dismissed the amended complaint, “finding that Illinois law
       and public policy require such claims to be based on a valid marriage.” Id. at 54.

¶ 56        The appellate court reversed, giving considerable weight to the fact that the
       parties had held themselves out as a couple for over 15 years and lived “a most
       conventional, respectable and ordinary family life.” Hewitt v. Hewitt, 62 Ill. App.
       3d 861, 863 (1978). The appellate court noted that the “single flaw” of Robert’s and
       Victoria’s relationship was the lack of a valid marriage. Id. The appellate court
       concluded that Victoria should not be denied relief based on public policy grounds.
       Id. at 867, 869. Adopting the reasoning of the “widely publicized” case of Marvin
       v. Marvin, 557 P.2d 106 (Cal. 1976), the appellate court held that the amended
       complaint stated a cause of action on an express oral contract. Hewitt, 62 Ill. App. at
       at 868. In Marvin, Michelle Marvin and actor Lee Marvin cohabited for seven years
       before Michelle sought, by way of a contract action, to enforce Lee’s oral promise
       that they would share earnings and property for life. Marvin, 557 P.2d at 110. In
       resolving her claim for one-half the property accumulated in defendant’s name
       during that period, the California court held that nonmarital cohabitants should be
       treated “as any other persons” and that contracts between them are valid and
       enforceable so long as they are not solely and exclusively based on sexual services,
       i.e., prostitution. Id. at 116. Consequently, the appellate court reversed and
       remanded the case. Hewitt, 62 Ill. App. 3d at 869.

¶ 57      On appeal to this court, we unanimously reversed the appellate court’s decision.
       Hewitt, 77 Ill. 2d at 66. Addressing the issue of whether the granting of


                                               - 16 -
       common-law relief to the plaintiff, an unmarried cohabitant, was barred by public
       policy, we began by acknowledging that:

           “The issue of unmarried cohabitants’ mutual property rights *** cannot
           appropriately be characterized solely in terms of contract law, nor is it limited
           to considerations of equity or fairness as between the parties to such
           relationships. There are major public policy questions involved in determining
           whether, under what circumstances, and to what extent it is desirable to accord
           some type of legal status to claims arising from such relationships. Of
           substantially greater importance than the rights of the immediate parties is the
           impact of such recognition upon our society and the institution of marriage.” Id.
           at 57-58.

¶ 58       In our view, the legislature intended marriage to be the only legally protected
       family relationship under Illinois law, and permitting unmarried partners to enforce
       mutual property rights might “encourage formation of such relationships and
       weaken marriage as the foundation of our family-based society.” Id. at 58. This
       court was concerned that permitting such claims might raise questions about
       support, inheritance rights, and custody of nonmarital children. 1 Id. We noted that
       the situation between the unmarried couple was “not the kind of arm’s length
       bargain envisioned by traditional contract principles, but an intimate arrangement
       of a fundamentally different kind.” Id. at 61. Because the question concerned
       changing the law governing the rights of parties in the delicate area of marriage-like
       relationships, which involves evaluations of sociological data and alternatives, this
       court decided that the underlying issue was best suited to the superior investigative
       and fact-finding facilities of the legislative branch in the exercise of its traditional
       authority to declare public policy in the domestic relations field. Id. Accordingly,
       this court held that Victoria’s claims were “unenforceable for the reason that they
       contravene the public policy, implicit in the statutory scheme of the Illinois
       Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually

           1
            The Hewitt court also questioned and considered the history of whether granting legal
       rights to cohabiting adults would encourage “what have heretofore been commonly
       referred to as ‘illicit’ or ‘meretricious’ relationships” which could weaken the institution of
       marriage. Hewitt, 77 Ill. 2d at 58. Today, this court does not share the same concern or
       characterization of domestic partners who cohabit, nor do we condone such comparisons.
       Nonetheless, as explained herein, a thorough reading of Hewitt makes clear that the core
       reasoning and ultimate holding of the case did not rely nor was dependent on the morality
       of cohabiting adults.

                                                   - 17 -
       enforceable property rights to knowingly unmarried cohabitants.” Id. at 66. We
       reasoned that an opposite outcome of judicially recognizing mutual property rights
       between knowingly unmarried cohabitants—where the claim is based upon or
       intimately related to the cohabitation of the parties—would effectively reinstate
       common-law marriage and violate the public policy of this state since 1905, when
       the legislature abolished common-law marriage. Id. at 65-66.

¶ 59       Notably, based on our understanding of the public policy in Illinois and the
       legislative prohibition of common-law marriage, we emphatically rejected the
       holding in Marvin on which the appellate court relied. Id. In doing so, we found that
       provisions of the Marriage and Dissolution Act—retaining fault as grounds for
       dissolution of marriage and allowing an unmarried person to acquire the rights of a
       legal spouse only if he or she goes through a marriage ceremony and cohabits with
       another in the good-faith belief that he is validly married—indicated the public
       policy and the judgment of the legislature disfavoring private contractual
       alternatives to marriage or the grant of property rights to unmarried cohabitants. Id.
       at 64. In rejecting Victoria’s public policy arguments, this court recognized that
       cohabitation by the unmarried parties may not prevent them from forming valid
       contracts about independent matters, for which sexual relations do not form part of
       the consideration and do not closely resemble those arising from conventional
       marriages. Id. at 59. However, that was not the type of claim Victoria brought; thus,
       her claim failed.

¶ 60       The facts of the present case are almost indistinguishable from Hewitt, except,
       in this case, the parties were in a same-sex relationship. During the course of their
       long-term, domestic relationship, Brewer alleges that she and Blumenthal had a
       relationship that was “identical in every essential way to that of a married couple.”
       Although the parties were not legally married, they acted like a married couple and
       held themselves out as such. For example, the former domestic partners exchanged
       rings as a symbol of their commitment to each other, executed wills and trusts, each
       naming the other as the sole beneficiary of her assets, and appointed each other as
       fiduciary for financial and medical decision making. Blumenthal and Brewer also
       began to commingle their personal and financial assets, which allowed them to
       purchase investment property as well as the Chicago home where they raised their
       three children. Much like in Hewitt, Brewer alleges that she contributed to
       Blumenthal’s purchase of an ownership interest in the medical group GSN, helping
       Blumenthal earn the majority of income for the parties and “thereby guaranteeing
       the family’s financial security.” Because Blumenthal was able to earn a high
                                               - 18 -
       income, Brewer was able to devote more time to raising the couple’s children and
       to attend to other domestic duties. Once Blumenthal’s and Brewer’s relationship
       ended, Brewer, like Victoria Hewitt, brought suit seeking various common-law
       remedies to equalize their assets and receive an interest in Blumenthal’s business.

¶ 61       As explained supra, our decision in Hewitt did no more than follow the
       statutory provision abolishing common-law marriage, which embodied the public
       policy of Illinois that individuals acting privately by themselves, without the
       involvement of the State, cannot create marriage-like benefits. Hewitt clearly
       declared the law on the very issue in this case. Yet, the appellate court in this case
       declined to follow our ruling, despite the facts being almost identical to Hewitt.
       This was improper. Under the doctrine of stare decisis, when this court “has
       declared the law on any point, it alone can overrule and modify its previous
       opinion, and the lower judicial tribunals are bound by such decision and it is the
       duty of such lower tribunals to follow such decision in similar cases.” (Emphasis in
       original.) (Internal quotation marks omitted.) Price v. Philip Morris, Inc., 2015 IL
       117687, ¶ 38. The appellate court had no authority to depart from our decision. It
       could question Hewitt and recommend that we revisit our holding in the case, but it
       could not overrule it.

¶ 62       The appellate court was also ill-advised to adopt the reasoning in Marvin (2014
       IL App (1st) 132250, ¶ 31), given that in Hewitt we unquestionably rejected
       Marvin. Hewitt, 77 Ill. 2d at 65-66. Determining that the legislature deliberately
       declined to follow the reasoning in Marvin, this court noted that during the time
       Marvin was being decided the Illinois legislature adopted the civil-law concept of
       the putative spouse, which involves a situation where a person goes through a
       marriage ceremony and cohabits with another in the good-faith belief that he or she
       is validly married. Id. at 64. Once the putative spouse learns that the marriage is not
       valid, his status as a putative spouse terminates because “common law marriages
       are expressly excluded.” Id. This enactment was essential to Hewitt’s holding
       because it provided specific evidence of the General Assembly’s intent to depart
       from Marvin’s pure contract theory. In light of our legislative review, we felt
       judicial policy making in this area to be inappropriate in light of the “recent and
       unmistakeable legislative judgment disfavoring the grant of mutual property rights
       to knowingly unmarried cohabitants.” Id. It was our judgment that granting relief
       under the facts of the case would be contrary to the legislative intent at the time and
       would have the practical effect of reinstating common-law marriage in Illinois. Id.
       at 65.
                                                - 19 -
¶ 63       When considering the property rights of unmarried cohabitants, our view of
       Hewitt’s holding has not changed. As in Hewitt, the issue before this court cannot
       appropriately be characterized solely in terms of contract law, nor is it limited to
       considerations of equity or fairness as between the parties in such marriage-like
       relationships. Id. at 57-58. These questions undoubtedly involve some of the most
       fundamental policy concerns in our society. Permitting such claims, as sought by
       Brewer, would not only impact the institution of marriage but also raise questions
       pertaining to other family-related issues. See id. at 58. Moreover, Brewer’s
       argument that her relationship with Blumenthal should not be viewed differently
       from others who cohabit, like roommates or siblings living together, ignores the
       fact that their relationship—which lasted almost three decades and involved raising
       three children—was different from other forms of cohabitation. Brewer herself
       identified in her counterclaim that her relationship with Blumenthal was not that of
       roommates or siblings living together but was “identical in every essential way to
       that of a married couple.”

¶ 64       Because rejection of Hewitt is essential to her counterclaim, Brewer requests
       that we revisit the decision and overrule it. The rationale, analysis, or distinctions
       that can be drawn from the following appellate court cases are helpful in explaining
       why we reject Brewer’s invitation to overrule Hewitt and hold that it remains good
       law.

¶ 65       Shortly after Hewitt was decided, in Spafford v. Coats, 118 Ill. App. 3d 566
       (1983), a decision not mentioned by the appellate court below, plaintiff Donna
       Spafford filed a complaint against defendant Richard Coats for the creation of a
       constructive trust, alleging that she purchased or paid the down payment from her
       own funds for various vehicles. Id. at 568. The problem, however, was that the
       vehicles purchased by Spafford were titled in Coats’s name because insurance
       premiums would be less. Id. Spafford and Coats were never married, but they
       cohabited for more than six years. Id. at 568-69. Using Hewitt as the basis for its
       decision, the circuit court directed a verdict in favor of Coats, finding that Spafford
       failed to state a cause of action. Id. at 569-70.

¶ 66       On review, the appellate court reversed, holding that in this particular situation,
       the nonmarital, cohabiting relationship did not preclude equitable relief on the
       vehicles purchased primarily by Spafford but titled in Coats’s name. Id. at 572-73.
       The Spafford court distinguished the case from Hewitt, finding that plaintiff’s
       claims were based on evidence that she furnished substantially all of the
                                               - 20 -
       consideration for the purchase of several vehicles that defendant retained. Id. at
       572. Instead, the appellate court found Spafford’s claims were substantially
       independent of the nonmarital relationship between the parties and not based on
       rights arising from their cohabitation, i.e., Spafford had actually paid for the motor
       vehicles herself. Id. Because Spafford’s claims had an economic basis independent
       of the nonmarital, cohabiting relationship, she was permitted to recover those
       independent contributions. Id. at 572-73.

¶ 67       The appellate court in Ayala v. Fox, 206 Ill. App. 3d 538 (1990), was faced with
       a similar situation as in Spafford. Anita Ayala and Lawrence Fox began their
       long-term relationship in 1976. Id. at 539. At Fox’s suggestion, they obtained a
       $48,000 loan to build a home. Id. Fox promised Ayala that title to the property
       would be transferred to them as joint tenants and that Ayala would receive one-half
       of the equity in the property if they stopped residing together. Id. For three years,
       Ayala made the majority of the loan, tax, and insurance payments; for the next
       seven years, Ayala and Fox jointly made the payments. Id. During the relationship,
       Fox never transferred title to the couple as joint tenants, nor did he pay Ayala half
       of the equity in the property. Id. Rather, he placed the property in a land trust and
       kept personal property purchased with the parties’ joint funds during the
       cohabitation. Id. After the parties ended their relationship, Ayala filed suit for a
       one-half interest in the realty and half of the personal property. Id. Dismissing the
       complaint, the circuit court found that Hewitt barred claims based on property
       disputes between cohabitants. Id. at 540.

¶ 68       The appellate court affirmed, holding that Ayala was not entitled to an interest
       in the property because she was seeking recovery based on rights “closely
       resembling those arising from a conventional marriage,” namely an equitable
       interest in the “marital” residence. Id. at 541. The appellate court distinguished the
       facts of its case from Spafford, finding Ayala’s claim was intimately related to her
       nonmarital cohabitation with Fox and, therefore, Hewitt barred plaintiff’s claims
       for equitable relief. Id. at 541-42.

¶ 69       Hewitt’s rationale was also pivotal in Costa v. Oliven (365 Ill. App. 3d 244, 245
       (2006), appeal denied, 221 Ill. 2d 633 (2006) (table)), which involved a case where
       plaintiff Eugene Costa sued defendant Catherine Oliven, with whom he had lived
       for 24 years in a “ ‘quasi-marital’ relationship, with ‘all the indicia of a marital type
       relationship, including love, trust, mutual responsibilities and intimacy.’ ” In this
       case, Costa alleged that he assumed the role of stay-at-home dad, nurturing and
                                                - 21 -
       home-schooling their daughter and routinely performing all of the usual activities
       associated with maintaining an efficient household in order to enable the defendant
       to work full time. Id. In addition, he alleged that during their years together, Oliven
       took sole title to almost every asset and possession that was acquired through the
       couple’s joint efforts and labor. Id. Based on these allegations, Costa requested the
       imposition of a constructive trust upon real, personal, and intellectual property
       owned by Oliven as well as an accounting of all income and assets in Oliven’s
       possession and an award of punitive damages in the amount of $250,000. Id. at
       245-46. Oliven moved to dismiss plaintiff’s claims, arguing that his claims were
       unenforceable based on section 214 of the Marriage and Dissolution Act (750 ILCS
       5/214 (West 2004)), which prohibits common-law marriage, and based on this
       court’s decision in Hewitt. Costa, 365 Ill. App. 3d at 246. Following the holding in
       Hewitt, the appellate court affirmed the circuit court’s dismissal of Costa’s
       complaint, noting that until the legislature enacted changes, this type of complaint
       would continue to fail. Id.

¶ 70       We find that the facts of the case before us today are not only factually similar
       to Hewitt, but also similar to Ayala and Costa. According to Brewer’s
       counterclaim, one of the ways Blumenthal and Brewer’s domestic relationship was
       identical to that of a married couple was, among other things, their decision to
       “commingle[ ] their personal property and their finances.” Beginning around the
       year 2000, Blumenthal and Brewer, like the parties in Ayala, pooled their assets and
       finances, which were used to make purchases including the arrangement to
       purchase an ownership interest in GSN. According to Brewer, these purchases were
       made for the benefit of providing the “family’s financial security” and to allow
       Brewer to devote a substantial amount of her time raising the couple’s children.
       The decision between Blumenthal and Brewer to commingle their finances and use
       those joint funds to make property and financial investments demonstrates that the
       funds were economically dependent on the parties’ marriage-like relationship.

¶ 71       For about eight years, Brewer never objected to the arrangement, nor does the
       counterclaim allege that she tried to earmark or record which funds of hers were
       going specifically toward the purchase of GSN, as if she were a business partner.
       This was unquestionably because Blumenthal and Brewer wanted to live like a
       married couple. Both parties voluntarily contributed to the joint account because
       that is typical of a married couple. The parties’ arrangement was made possible
       because Brewer, like the plaintiff in Costa, agreed to forgo advancing her own legal
       career in order for Blumenthal to pursue entrepreneurial endeavors including the
                                               - 22 -
       purchase of an ownership interest in GSN. Indeed, Brewer is correct in labeling
       Blumenthal’s and her purchase of GSN as an investment. But it was an investment
       for the family, which included Blumenthal, Brewer, and their children. It was not
       an investment between business partners. Nor was it the kind of arm’s-length
       bargain envisioned by traditional contract principles. Rather, the arrangement to
       use the parties’ commingled funds was an arrangement of a fundamentally different
       kind, which, like the arrangement in Ayala and Costa, is intimately related and
       dependent on Brewer’s marriage-like relationship with Blumenthal.

¶ 72       Additionally, Brewer’s claim for restitution in count III is distinguishable from
       Spafford. Unlike the plaintiff in Spafford, Brewer does not allege that she
       contributed substantially all of the funds for the purchase of GSN. In fact, Brewer’s
       counterclaim does not provide a specific amount of funds she contributed to
       Blumenthal’s ownership interest in GSN, nor does Brewer allege that she and
       Blumenthal somehow attempted to keep their contributions separate. Rather, the
       purchase came after many years of the former domestic partners living together,
       raising a family, and depositing funds in their joint account as well as making
       certain family purchases out of the joint account. It is undeniable that the purchase
       of Blumenthal’s ownership interest in GSN was dependent on the parties’
       relationship, because the purchase was made for the family’s financial security.
       That was not the situation in Spafford.

¶ 73       While we acknowledge that restitution may be a remedy available to a party
       who has cohabited with another (see Hewitt, 77 Ill. 2d at 55-56), that is not the
       circumstance concerning Brewer’s restitution claim in count III of her
       counterclaim. We find that Brewer failed to make a showing that count III of her
       counterclaim has an independent economic basis apart from the parties’
       relationship. The joint account used by Blumenthal and Brewer to purchase an
       ownership interest in GSN was dependent on their desire to live in a marriage-like
       relationship and make purchases out of this account to better their family situation.
       Therefore, the purchase of Blumenthal’s ownership interest in GSN from the joint
       account is intimately related to the parties’ relationship. Our decision in Hewitt bars
       such relief if the claim is not independent from the parties’ living in a marriage-like
       relationship for the reason it contravenes the public policy, implicit in the statutory
       scheme of the Marriage and Dissolution Act, disfavoring the grant of mutually
       enforceable property rights to knowingly unmarried cohabitants. Id. at 66.



                                               - 23 -
¶ 74       Next, Brewer respectfully asks this court to affirm the appellate court’s
       decision, which held in her favor that former cohabitants who live outside the
       bonds of marriage, but live in a marriage-like relationship, may bring common-law
       property claims. Central to Brewer’s argument are various post-Hewitt legislative
       enactments in Illinois, which she claims indicate that the state’s public policy has
       shifted dramatically in regards to unmarried couples and their children. According
       to Brewer, the following legislative enactments reveal that the application of Hewitt
       is no longer justified and that the state’s evolving public policy now contradicts
       Hewitt’s rule. We disagree.

¶ 75        Since this court’s decision in Hewitt, the General Assembly has enacted,
       repealed, and amended numerous family-related statutes. In 1984, the legislature
       adopted a no-fault ground of divorce based on irreconcilable differences to the
       Illinois Marriage and Dissolution of Marriage Act. Pub. Act 83-954 (eff. July 1,
       1984) (codified at 750 ILCS 5/401(a)(2) (West 2012)). Then in 1985, the Illinois
       Parentage Act of 1984 provided that “[t]he parent and child relationship, including
       support obligations, extends equally to every child and to every parent, regardless
       of the marital status of the parents.” Pub. Act 83-1372 (eff. July 1, 1985) (codified
       at 750 ILCS 45/3 (West 2012)). Additionally, since Hewitt, there has been an
       amendment to the Probate Act of 1975 extending intestate inheritance rights to
       children of unmarried parents (Pub. Act 80-1429 (eff. Sept. 12, 1978) (codified at
       755 ILCS 5/2-2 (West 2012))), and a similar amendment to the Illinois Pension
       Code, which indicates that children born to unmarried parents are entitled to the
       same survivor’s benefits as other children (Pub. Act 84-1028 (eff. Nov. 18, 1985)
       (codified at 40 ILCS 5/1-104.2 (West 2012))). Further, Illinois also recognizes the
       rights of unmarried couples (and individuals) to adopt children. Pub. Act 96-328
       (eff. Aug. 11, 2009) (codified at 750 ILCS 50/2 (West 2010)). In 2011, the
       legislature enacted the Illinois Religious Freedom and Civil Union Act, gave legal
       status to civil unions, and made such status available to both opposite-sex and
       same-sex couples. Pub. Act 96-1513 (eff. June 1, 2011) (adding 750 ILCS 75/1
       et seq. (West 2010)). As of 2014, under the Religious Freedom and Marriage
       Fairness Act, same-sex couples are now able to marry in Illinois. Pub. Act 98-597
       (eff. June 1, 2014) (adding 750 ILCS 80/1 et seq. (West 2014)). More recently, the
       Parentage Act of 1984 was repealed (in its entirety) by the 2015 enactment of
       Public Act 99-85, which replaced it with the Illinois Parentage Act of 2015. 750
       ILCS 45/1 et seq. (West 2014) (repealed by Pub. Act 99-85 (eff. Jan. 1, 2016)
       (adding 750 ILCS 46/101 et seq.)). In addition, the Marriage and Dissolution Act,

                                              - 24 -
       which incorporates the statute prohibiting common-law marriages, underwent a
       major overhaul this year. Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS
       5/101 et seq. (West 2014)).

¶ 76       These post-Hewitt amendments demonstrate that the legislature knows how to
       alter family-related statutes and does not hesitate to do so when and if it believes
       public policy so requires. Nothing in these post-Hewitt changes, however, can be
       interpreted as evincing an intention by the legislature to change the public policy
       concerning the situation presently before this court. To the contrary, the claim that
       our legislature is moving toward granting additional property rights to unmarried
       cohabitants in derogation of the prohibition against common-law marriage is flatly
       contradicted by the undeniable fact that for almost four decades since Hewitt, and
       despite all of these numerous changes to other family-related statutes, the statutory
       prohibition against common-law marriage set forth in section 214 of the Marriage
       and Dissolution Act (750 ILCS 5/214 (West 2014)) has remained completely
       untouched and unqualified. That is so even though this court in Hewitt explicitly
       deferred any policy change to the legislature. Hewitt, 77 Ill. 2d at 66 (When
       deciding complex public-policy considerations, such “ ‘questions are appropriately
       within the province of the legislature, and *** if there is to be a change in the law of
       this State on this matter, it is for the legislature and not the courts to bring about that
       change.’ ” (quoting Mogged v. Mogged, 55 Ill. 2d 221, 225 (1973))).

¶ 77       It is well-understood that when the legislature chooses not to amend a statute to
       reverse a judicial construction, it is presumed that the legislature has acquiesced in
       the court’s statement of the legislative intent. Wakulich v. Mraz, 203 Ill. 2d 223,
       233 (2003) (quoting Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 49-50 (1998)).
       Based on this principle, we can presume that the legislature has acquiesced in
       Hewitt’s judicial interpretation of the statute prohibiting marriage-like rights to
       those outside of marriage. If this court were to recognize the legal status desired by
       Brewer, we would infringe on the duty of the legislature to set policy in the area of
       domestic relations. As mentioned in Hewitt, the legislative branch is far better
       suited to declare public policy in the domestic relations field due to its superior
       investigative and fact-finding facilities, as declaring public policy requires
       evaluation of sociological data and alternatives. Therefore, we do not find a
       compelling reason to reverse course now and depart from our earlier legislative
       interpretation, especially in light of almost two score years of legislative inaction
       on the matter.

                                                 - 25 -
¶ 78       Brewer’s argument that we should recognize new public policy justifications to
       support her counterclaim is further undermined by the fact that all of the public
       policy changes to which she cites resulted not from judicial action but from the
       legislature. In each example, it was the legislature, not the courts, that determined
       what Illinois public policy was (or was not) to be.

¶ 79       We also reject Brewer’s argument that changes in law since Hewitt demonstrate
       that the “legislature no longer considers withholding protection from nonmarital
       families to be a legitimate means of advancing the state’s interest in marriage.” To
       the contrary, this court finds that the current legislative and judicial trend is to
       uphold the institution of marriage. Most notably, within the past year, the United
       States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584,
       2604-05 (2015), held that same-sex couples cannot be denied the right to marry. In
       doing so, the Court found that “new insights [from the developments in the
       institution of marriage over the past centuries] have strengthened, not weakened,
       the institution of marriage.” Id. at ___, 135 S. Ct. at 2596. For the institution of
       marriage has been a keystone of our social order and “remains a building block of
       our national community.” Id. at ___, 135 S. Ct. at 2601. Accordingly, the Court
       invalidated any state legislation prohibiting same-sex marriage because excluding
       same-sex couples from marriage would be excluding them “from one of
       civilization’s oldest institutions.” Id. at ___, 135 S. Ct. at 2608.

¶ 80       While the United States Supreme Court has made clear that “[t]he Constitution
       *** does not permit the State to bar same-sex couples from marriage on the same
       terms as accorded to couples of the opposite sex” (id. at ___, 135 S. Ct. at 2607),
       nothing in that holding can fairly be construed as requiring states to confer on
       non-married, same-sex couples common-law rights or remedies not shared by
       similarly situated non-married couples of the opposite sex. Legislatures may, of
       course, decide that matters of public policy do warrant special consideration for
       non-married, same-sex couples under certain circumstances, notwithstanding the
       fact that the institution of marriage is available to all couples equally. What is
       important for the purposes of this discussion is that the balancing of the relevant
       public policy considerations is for the legislature, not the courts. Indeed, now that
       the centrality of the marriage has been recognized as a fundamental right for all, it
       is perhaps more imperative than before that we leave it to the legislative branch to
       determine whether and under what circumstances a change in the public policy
       governing the rights of parties in nonmarital relationships is necessary.

                                              - 26 -
¶ 81       It is well settled that the policy of the Marriage and Dissolution Act gives the
       state a strong continuing interest in the institution of marriage and the ability to
       prevent marriage from becoming in effect a private contract terminable at will, by
       disfavoring the grant of mutually enforceable property rights to knowingly
       unmarried cohabitants. See Hewitt, 77 Ill. 2d at 65-66. As explained in Hewitt, such
       policy was set forth by the enactment of section 214 of the Marriage and
       Dissolution Act. Ill. Rev. Stat. 1979, ch. 40, ¶ 214 (codified at 750 ILCS 5/214
       (West 2010)). Until the legislature sees fit to change our interpretation of the public
       policy in Illinois, under the circumstances of this case, Brewer’s claim for
       restitution is prohibited, as it contravenes the public policy implicit in the Marriage
       and Dissolution Act.

¶ 82       Lastly, we note that Brewer, the supporting amici, and the partial dissent cite to
       numerous cases from our sister state courts and other secondary sources that
       support Brewer’s public policy arguments. However, decisions from other state
       courts and secondary sources are not binding on this court and, in this particular
       situation, are unpersuasive for the reason they do not adequately consider the
       deeply rooted public policy in Illinois. In re Parentage of Scarlett Z.-D., 2015 IL
       117904, ¶ 55 (citing Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d
       478, 489 (1989)). Additionally, it should be noted that these cases and secondary
       sources were written prior to, and therefore did not consider, the fundamental
       change the United States Supreme Court decision in Obergefell had on legal rights
       of same-sex partners.



¶ 83                        Due Process and Equal Protection Claims

¶ 84        The determination that the trial court did not err in dismissing Brewer’s
       counterclaim does not end this appeal, for Brewer argues that the continued
       application of Hewitt’s rule would violate the Illinois and federal constitutional
       guarantees of due process and equal protection. See U.S. Const., amend. XIV, § 1;
       Ill. Const. 1970, art. I, §§ 2, 12. Brewer claims that Hewitt’s rule preventing
       unmarried domestic partners the ability to bring common-law claims available to
       all other persons, solely because they are in a marriage-like relationship, does not
       rationally advance a legitimate governmental purpose and that it deliberately seeks
       to penalize unmarried partners for exercising their constitutionally protected right
       to enter into an intimate relationship. Although the appellate court did not address

                                               - 27 -
       this issue, the issue has been raised and fully briefed by both parties. Therefore, we
       will address this issue on appeal. Chavda v. Wolak, 188 Ill. 2d 394, 400 (1999).

¶ 85       We disagree with Brewer’s claim that Hewitt’s holding denies unmarried
       domestic partners the ability to bring common-law claims solely because they are
       in an intimate relationship with another. See supra ¶¶ 65-73. This court’s decision
       in Hewitt only disallows unmarried cohabitants who live in a marriage-like
       relationship from accessing, under the guise of an implied contract, the rights and
       protections specified in the Marriage and Dissolution Act. In other words,
       individuals can enter into an intimate relationship, but the relationship itself cannot
       form the basis to bring common-law claims. Thus, Hewitt’s holding does not
       prevent or penalize unmarried partners from entering into intimate relationships.
       Rather, it acknowledges the legislative intent to provide certain rights and benefits
       to those who participate in the institution of marriage.

¶ 86       The State’s interest in the creation, regulation, and dissolution of the marriage
       relationship is beyond question. Over one hundred years ago, the United States
       Supreme Court in Maynard v. Hill, 125 U.S. 190, 211 (1888), recognized that
       marriage “is the foundation of the family and of society, without which there would
       be neither civilization nor progress.” Throughout history, states have contributed to
       the fundamental character of the marriage right by placing that institution at the
       center of so many facets of the legal and social order. See Obergefell, 576 U.S. at
       ___, 135 S. Ct. at 2601. In Williams v. North Carolina, 317 U.S. 287, 298 (1942),
       the Court noted that “[e]ach state as a sovereign has a rightful and legitimate
       concern in the marital status of persons domiciled within its borders.” This is so
       because “[t]he definition of marriage is the foundation of the State’s broader
       authority to regulate the subject of domestic relations with respect to the
       ‘[p]rotection of offspring, property interests, and the enforcement of marital
       responsibilities.’ ” United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675,
       2691 (2013) (quoting Williams, 317 U.S. at 298). In enacting the Marriage and
       Dissolution Act (Pub. Act 80-923 (eff. Oct. 1, 1977) (codified at 750 ILCS 5/101
       et seq. (West 2014))), the Illinois Legislature has shown its rightful interest in
       defining and regulating domestic relationships.

¶ 87       Since marriage is a legal relationship that all individuals may or may not enter
       into, Illinois does not act irrationally or discriminatorily in refusing to grant
       benefits and protections under the Marriage and Dissolution Act to those who do
       not participate in the institution of marriage. As noted in Hewitt and the line of
                                               - 28 -
       cases that follow its holding, unmarried individuals may make express or implied
       contracts with one another, and such contracts will be enforceable if they are not
       based on a relationship indistinguishable from marriage. Indeed, Hewitt did nothing
       more than effectuate the policy established by the legislature to prevent knowingly
       unmarried cohabitants from evading the statutory abolition of common-law
       marriage under section 214 of the Marriage and Dissolution Act (750 ILCS 5/214
       (West 2010)) by employing theories of implied contract to achieve the same result
       that would occur if common-law marriage were recognized.

¶ 88        Brewer, however, contends that it is “particularly irrational” to apply this
       principle to her because she and Blumenthal could not marry at the time their
       domestic relationship ended because same-sex marriage was not recognized in
       Illinois. Although Brewer correctly states that Illinois did not recognize same-sex
       marriage at the time the former domestic partners ended their relationship, Brewer
       was not without a legal remedy. In 2005, Blumenthal and Brewer took out a
       marriage license in Massachusetts, but they never married in that state. While
       Illinois would not have recognized the validity of a same-sex marriage entered into
       in Massachusetts, Blumenthal and Brewer could have married in Massachusetts,
       despite the inconvenience, and brought a legal action similar to the plaintiff and her
       partner in Windsor, who in 2007 travelled to Ontario, Canada, in order to be
       married because they could not marry where they resided. Windsor, 570 U.S. at
       ___, 133 S. Ct. at 2689. Additionally, Blumenthal and Brewer could have filed a
       legal action seeking to overturn, on constitutional grounds, Illinois’s ban on
       same-sex marriage (750 ILCS 5/213.1 (West 2012) (repealed by Pub. Act 98-597
       (eff. June 1, 2014))), just as the plaintiffs in Obergefell did. Obergefell, 576 U.S. at
       ___, 135 S. Ct. at 2593. Yet, Blumenthal and Brewer chose none of these options.
       In light of the possible remedies available at the time of the former domestic
       partners’ relationship, Brewer cannot now claim that her state and federal due
       process and equal protection rights were violated. We, therefore, reject Brewer’s
       claims.



¶ 89                                      CONCLUSION

¶ 90      For the foregoing reasons, the appellate court should not have considered
       Brewer’s appeal with respect to that portion of the circuit court’s order disposing of
       counts I, II, IV, and V of Brewer’s counterclaim, and it erred when it reversed and

                                                - 29 -
       remanded the cause with respect to count III of Brewer’s counterclaim. The
       judgment of the appellate court is therefore vacated in part and reversed in part. The
       judgment of the circuit court dismissing Brewer’s counterclaim in full is affirmed.



¶ 91      Appellate court judgment vacated in part and reversed in part.

¶ 92      Circuit court judgment affirmed.



¶ 93      JUSTICE THEIS, concurring in part and dissenting in part:



¶ 94       I agree with the majority’s disposition of counts I, II, IV, and V of Judge
       Brewer’s counterclaim against Dr. Blumenthal. I further agree with the majority’s
       holding that count III of the counterclaim cannot proceed on a constructive trust
       theory. I disagree with the majority’s holding that count III cannot proceed on a
       restitution theory.

¶ 95        The trial court dismissed Brewer’s amended complaint in its entirety because it
       felt bound to Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court did not feel
       similarly bound, but, as the majority notes, that court should have followed that
       case. Supra ¶ 61 (quoting Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38). The
       central question for us to decide here is whether we should do so.

¶ 96        The doctrine of stare decisis is not an inexorable command (Chicago Bar Ass’n
       v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994)), and this court will
       depart from it and discard a prior case when there is good cause to do so (Moehle v.
       Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982)). Good cause exists when an
       earlier ruling has proven to be unworkable or poorly reasoned. People v. Sharpe,
       216 Ill. 2d 481, 520 (2005) (citing People v. Jones, 207 Ill. 2d 122, 134 (2003)); see
       Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) (stating that “any detours from the
       straight path of stare decisis in our past have occurred for articulable reasons, and
       only when the Court has felt obliged to bring its opinions into agreement with
       experience and with facts newly ascertained” (internal quotation marks omitted)).
       In my view, there is good cause to overrule Hewitt. The court’s decision in that case


                                               - 30 -
       was clouded by an inappropriate and moralistic view of domestic partners who
       cohabit and founded upon legal principles that have changed significantly.

¶ 97        According to the majority, Hewitt “did no more than follow the statutory
       provision abolishing common-law marriage, which embodied the public policy of
       Illinois that individuals acting privately by themselves, without the involvement of
       the State, cannot create marriage-like benefits.” Supra ¶ 61. In fact, Hewitt did
       much more. It etched into the Illinois Reports the arcane view that domestic
       partners who choose to cohabit, but not marry, are engaged in “illicit” or
       “meretricious” behavior at odds with foundational values of “our family-based
       society.” Hewitt, 77 Ill. 2d at 58. “Meretricious” means “of or relating to a
       prostitute” (Webster’s Third New International Dictionary 1413 (1986)), so this
       court labeled such people as prostitutes.

¶ 98       The majority’s attempt to distance itself from Hewitt’s sweeping and
       near-defamatory statement is unconvincing. Though the majority assures that “this
       court does not share the same concern or characterization of domestic partners who
       cohabit, nor do we condone such comparisons” (supra ¶ 58 n.1), its disavowal of
       Hewitt is literally subtextual, occurring only in a footnote. Elsewhere, the majority
       borrows troubling language from that case. In Hewitt, the court stated that “the
       situation” between the parties was “not the kind of arm’s length bargain envisioned
       by traditional contract principles, but an intimate arrangement of a fundamentally
       different kind.” Hewitt, 77 Ill. 2d at 61. Here, the majority states that the parties’
       investment into Blumenthal’s medical practice was not “the kind of arm’s-length
       bargain envisioned by traditional contract principles,” but rather “an arrangement
       of a fundamentally different kind, which *** is intimately related and dependent on
       Brewer’s marriage-like relationship with Blumenthal.” Supra ¶ 71. The majority
       cleverly tries to cloak the real meaning of Hewitt, but what makes these
       “arrangements” fundamentally different is the same for the Hewitt court and the
       majority.

¶ 99       To state uncategorically that “our view of Hewitt’s holding has not changed”
       (supra ¶ 63) and insist that “it remains good law” (supra ¶ 64) is to reaffirm an
       oddly myopic and moralistic view of cohabitation. The majority assertion that
       Hewitt’s “core reasoning and ultimate holding *** did not rely nor was dependent
       on the morality of cohabiting adults” (supra ¶ 58 n.1) is plainly incorrect because
       the court’s discussion of the role of the legislature in setting public policy on
       domestic relations and the prohibition of common-law marriage comes as an
                                               - 31 -
        even-if afterthought. See Hewitt, 77 Ill. 2d at 60. Insulating the institution of
        marriage from the “changing mores of our society” was the clear impetus for our
        holding in that case. Id. at 58.

¶ 100       To begin its analysis, the Hewitt court discussed at length the so-called rule of
        illegality. The court quoted the first Restatement of Contracts, which stated, “ ‘A
        bargain in whole or in part for or in consideration of illicit sexual intercourse or of a
        promise thereof is illegal.’ ” Hewitt, 77 Ill. 2d at 59 (quoting Restatement of
        Contracts § 589 (1932)). And the court cited the well-known contract law treatise
        by Arthur Corbin, the reporter of the First Restatement, as further support for the
        traditional rule. Id. (citing 6A Arthur Linton Corbin, Corbin on Contracts § 1476
        (1962)). The Hewitt court acknowledged 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” (id.), but rejected
        the “real thrust” of the argument that the rule of illegality should be abandoned (id.
        at 60). The court decried “the naivete *** involved in the assertion that there are
        involved in these relationships contracts separate and independent from the sexual
        activity, and the assumption that those contracts would have been entered into or
        would continue without that activity.” Id.

¶ 101       Hewitt’s support for the rule of illegality has disappeared. In 1979, Illinois still
        criminalized cohabitation. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a “person who
        cohabits *** commits fornication if the behavior is open and notorious”). The
        Hewitt court did not cite that statute, but quoted Wallace v. Rappleye, 103 Ill. 229,
        249 (1882), which held, “ ‘An agreement in consideration of future illicit
        cohabitation between the [parties] is void.’ ” Hewitt, 77 Ill. 2d at 58-59. When the
        prohibition against cohabitation was repealed in 1990 (see Pub. Act 86-490 (eff.
        Jan. 1, 1990) (codified at 720 ILCS 5/11-40 (West 2010))), Wallace was, in effect,
        superseded.

¶ 102       The Second Restatement of Contracts, which was completed in 1979 and
        published in 1981, deleted the section of the First Restatement quoted in Hewitt and
        ceased to define all bargains between people in intimate relationships as illegal.
        The section of the Corbin treatise cited in Hewitt has been dropped in the current
        version. Today, the treatise recognizes that cohabiting adults are a family and notes,
        “The courts' treatment of contracts entered into by cohabiting parties evolved in the
        last part of the twentieth century and is clear evidence of how the courts’ view of
        what might be against public policy varies with changes in society’s views.” 15
                                                 - 32 -
        Grace McLane Giesel, Corbin on Contracts § 81.4, at 205 (Joseph M. Perillo ed.,
        rev. ed. 2003) (hereinafter Corbin). According to the treatise, courts across the
        country no longer perceive a conflict between the public policies of protecting and
        encouraging marriage and discouraging any exchange of sexual activity for value
        and enforcing agreements between former cohabitants. Corbin, supra, § 81.4, at
        207-08.

¶ 103      The treatise also refers to the landmark “palimony” case of Marvin v. Marvin,
        557 P.2d 106 (Cal. 1976) (en banc), remarking:

               “Whereas cases decided [prior to] Marvin may have presumed that the
           sexual relationship was the substance of the agreement, cases after Marvin
           seem to presume that the relationship is not the substance of the agreement.
           These cases are not concerned that the agreement exists in the context of a
           sexual relationship, but rather are concerned only if the contract’s ‘primary’
           reason is sexual relations for value.” Corbin, supra, § 81.4, at 219.

        Brewer and the amici supporting her cite many of those cases, but the majority
        declines to follow them because they are not binding authority and “do not
        adequately consider the deeply rooted public policy in Illinois.” Supra ¶ 82. That
        policy, presumably, is the one mentioned earlier by the majority that individuals
        acting privately cannot create marriage-like benefits without the involvement of the
        State. Supra ¶ 61. According to the majority, that policy is embodied in prohibition
        of common-law marriage that “has remained completely untouched and
        unqualified” in the nearly four decades since Hewitt. Supra ¶ 76.

¶ 104       Obviously, Illinois’s common-law marriage ban is still in effect. See 750 ILCS
        5/214 (West 2010). Parallel statutes are in effect across the country, 2 but only
        Georgia and Louisiana have rulings similar to Hewitt. See Long v. Marino, 441
        S.E.2d 475 (Ga. Ct. App. 1994); Schwegmann v. Schwegmann, 441 So. 2d 316 (La.
        Ct. App. 1983). Courts in a vast majority of the remaining states, as well as the
        District of Columbia, that have chosen not to recognize common-law marriages
        also have chosen to recognize claims between former domestic partners like
        Blumenthal and Brewer. See, e.g., Bishop v. Clark, 54 P.3d 804 (Alaska 2002);

           2
            According to the National Conference of State Legislatures, only Alabama, Colorado,
        Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, and
        Texas still recognize common-law marriage. Http://www.ncsl.org/research/
        human-services/common-law-marriage.aspx (updated August 4, 2014).

                                                - 33 -
        Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark.
        1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d
        142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of
        Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d
        648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App.
        1980); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982); Wilcox v.
        Trautz, 693 N.E.2d 141 (Mass. 1998); Featherston v. Steinhoff, 575 N.W.2d 6
        (Mich. Ct. App. 1997); In re Estate of Eriksen, 337 N.W.2d 671 (Minn. 1983);
        Cates v. Swain, No. 2010-CT-01939-SCT, 2013 WL 1831783 (Miss. May 2, 2013);
        Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987); Kinkenon v. Hue, 301
        N.W.2d 77 (Neb. 1981); Hay v. Hay, 678 P.2d 672 (Nev. 1984); Dominguez v.
        Cruz, 617 P.2d 1322 (N.M. Ct. App. 1980); Morone v. Morone, 413 N.E.2d 1154
        (N.Y. 1980); Collins v. Davis, 315 S.E.2d 759 (N.C. Ct. App. 1984), aff’d per
        curiam, 321 S.E.2d 892 (N.C. 1984); McKechnie v. Berg, 667 N.W.2d 628 (N.D.
        2003); Beal v. Beal, 577 P.2d 507 (Or. 1978) (en banc); Knauer v. Knauer, 470
        A.2d 553 (Pa. Super. Ct. 1983); Bracken v. Bracken, 217 N.W. 192 (S.D. 1927);
        Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Belcher v. Kirkwood, 383
        S.E.2d 729 (Va. 1989); In re Marriage of Lindsey, 678 P.2d 328 (Wash. 1984)
        (en banc); Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990); Watts v. Watts, 405
        N.W.2d 303 (Wis. 1987); Kinnison v. Kinnison, 627 P.2d 594 (Wy. 1981).

¶ 105       The recognition of claims between domestic partners has not revived the
        doctrine of common-law marriage in jurisdictions that have abolished it. See
        Principles of the Law of Family Dissolution § 6.01 cmt. a (2002) (hereinafter
        Principles). That is, “the history of common law marriage in this country” (Hewitt,
        77 Ill. 2d at 64)—or, more precisely, its widespread prohibition—has not prevented
        courts across the country from allowing such claims to proceed. See Glasgo, 410
        N.E.2d at 1330 (“We do not find that recognition of a claim for a declaration of
        property rights in specific property to be a claim which reinstates common law
        marriages.”); Hay, 678 P.2d at 674 (“We hasten to point out that Nevada does not
        recognize common law marriage. [Citation.] We recognize that the state has a
        strong public policy interest in encouraging legal marriage. We do not, however,
        believe that policy is well served by allowing one participant in a meretricious
        relationship to abscond with the bulk of the couple’s acquisitions.”); Goode, 396
        S.E.2d at 438 (“This Court *** recognizes that the state has a strong policy interest
        in encouraging legally valid marriages. [Citation.] However, we *** also recognize
        that this policy must not defeat a person’s equitable interests, nor a person’s rights

                                                - 34 -
        based upon a valid agreement, expressed or implied.”); Kinnison, 627 P.2d at 595
        (“While repeatedly rejecting the doctrine of common-law marriage, this court has
        never held, however, that the fact that a man and a woman live together out of
        wedlock and engage in a sexual relationship in any way invalidates agreements
        between them or, because of the relationship, renders them incapable of contracting
        with one another.”); see also Boland, 521 A.2d at 145; Wilcox, 693 N.E.2d at 146;
        Hudson, 732 S.W.2d at 926; Dominguez, 617 P.2d at 1322-23; Knauer, 470 A.2d at
        564.

¶ 106       In light of this wave of authority, the Restatement (Third) of Restitution and
        Unjust Enrichment now contains a new section that provides former domestic
        partners with an avenue “to prevent unjust enrichment upon the dissolution of the
        relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28(1)
        (2011).

¶ 107       Illinois is a clear outlier on this issue. See Principles, supra, § 6.03, Reporter’s
        Notes, cmt. b (“Although Hewitt is not entirely isolated [citation] its approach is
        distinctly a minority view, and has been explicitly rejected by many courts ***.”).
        Hewitt must be overruled because it is outmoded and out of touch with
        contemporary experience and opinions on cohabitation.

¶ 108       Additionally, Hewitt must be overruled because the legal landscape that formed
        the background for our decision has changed significantly. The Hewitt court was
        puzzled by the impact that recognizing claims arising from the relationships of
        unmarried cohabitants would have on society. Hewitt, 77 Ill. 2d at 58. Specifically,
        the court queried, “[W]hat of the children born of such relationships? What are
        their support and inheritance rights and by what standards are custody questions
        resolved? What of the sociological and psychological effects upon them of that
        type of environment?” Id. That court was the same one that decided Jarrett v.
        Jarrett, 78 Ill. 2d 337, 345 (1979), which affirmed a trial court ruling transferring
        custody of three children to their father because their mother was cohabiting with
        another man. Four years later in In re Marriage of Thompson, 96 Ill. 2d 67, 78
        (1983), the court changed course and held that, in Illinois, there is no “conclusive
        presumption that, because a custodial parent cohabits with a member of the
        opposite sex, the child is harmed.” See also In re Marriage of R.S., 286 Ill. App. 3d
        1046, 1055 (1996) (“the clear import of the Thompson opinion is that Illinois courts
        should not adopt absolute rules that require a change in custody based on conduct


                                                 - 35 -
        of the custodial parent that does not impact the children”). Unmarried couples may
        now adopt children. See 750 ILCS 50/2 (West 2010).

¶ 109       As for support and inheritance, the Probate Act of 1975 was amended in 1978 to
        extend intestate inheritance rights to children of unmarried parents. See Pub. Act
        80-1429 (eff. Sept. 12, 1978) (codified at 755 ILCS 5/2-2 (West 2010)). Similarly,
        the Illinois Pension Code was amended in 1985 to extend survivor benefits to such
        children. See Pub. Act 84-1028 (eff. Nov. 18, 1995) (codified at 40 ILCS 5/1-104.2
        (West 2010)). And the Illinois Parentage Act of 1984, which also went into effect in
        1985, specifically provided that “[t]he parent and child relationship, including
        support obligations, extends equally to every child and to every parent, regardless
        of the marital status of the parents.” Pub. Act 83-1372 (eff. July 1, 1985) (codified
        at 750 ILCS 45/3 (West 2010)). That statute has since been repealed and replaced
        by the Illinois Parentage Act of 2015.

¶ 110       To bolster its holding, Hewitt relied upon Illinois’s rejection of so-called
        no-fault divorce. See Hewitt, 77 Ill. 2d at 63 (citing Ill. Rev. Stat. 1977, ch. 40,
        ¶ 401). The court took the legislature’s decision to retain fault grounds for divorce
        as a “significantly stronger promarriage policy” that reaffirmed “the traditional
        doctrine that marriage is a civil contract between three parties[: ]the husband, the
        wife[,] and the State” and prevented “the marriage relation from becoming in effect
        a private contract terminable at will.” Hewitt, 77 Ill. 2d at 63-64.

¶ 111       The Marriage and Dissolution of Marriage Act was amended in 1984, and since
        then Illinois has had no-fault divorce. See 750 ILCS 5/401(a)(2) (West 2010); see
        also Karbin v. Karbin, 2012 IL 112815, ¶ 39 (stating that the no-fault divorce
        provisions of the Act signaled a shift in policy that “reflected a dissatisfaction with
        the traditional requirements of proving fault to obtain a divorce” and “allowed
        people to part with dignity” (internal quotation marks omitted)). And the Illinois
        Uniform Premarital Agreement Act was adopted in 1990. See 750 ILCS 10/1
        et seq. (West 2010); see also In re Marriage of Barnes, 324 Ill. App. 3d 514, 517
        (2001) (indicating that, historically, premarital agreements that limited spousal
        maintenance or distributed property upon divorce were invalidated on public policy
        grounds because they were said to be conducive to divorce, but it is now “clear that
        there is no longer any general public policy opposed to agreements contemplating
        divorce”). Those statutes answer the Hewitt court’s concern about “the marriage
        relation *** becoming in effect a private contract terminable at will.” Hewitt, 77 Ill.
        2d at 64.
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¶ 112       Notably, Hewitt’s paternalistic reference to only opposite-gender marriages has
        been superseded by the Religious Freedom and Marriage Fairness Act (Pub. Act
        98-597 (eff. June 1, 2014) (adding, inter alia, 750 ILCS 80/5 (West Supp. 2013))),
        which provides “same-sex and different-sex couples and their children equal access
        to the status, benefits, protections, rights, and responsibilities of civil marriage.”
        The legislature, in an earlier statute, extended the rights and burdens of marriage to
        domestic partners who enter civil unions (see 750 ILCS 75/1 et seq. (West 2010)),
        and many public and private employers provide benefits to domestic partners who
        cohabit.

¶ 113       The majority, however, refuses to give these statutory amendments much
        weight. According to the majority, “[t]hese post-Hewitt amendments demonstrate
        that the legislature knows how to alter family-related statutes and does not hesitate
        to do so when and if it believes public policy so requires.” Supra ¶ 76. The
        implication is that, in light of the many statutory changes since Hewitt, the
        legislature’s silence on the rights of cohabitants somehow indicates its rejection of
        claims like those brought by Brewer. I interpret that silence differently. Simply
        because the legislature has taken some action in the domestic relations arena does
        not mean that this court cannot act as well. See In re Parentage of M.J., 203 Ill. 2d
        526, 540 (2003). The legislature is undoubtedly well equipped to declare public
        policy on domestic relations. Hewitt, 77 Ill. 2d at 61, 66; supra ¶ 77. Courts,
        however, are better equipped than the legislature to help parties divide joint assets
        using familiar legal and equitable rules. See Watts, 405 N.W.2d at 311 (“Courts
        have traditionally developed principles of contract and property law through the
        case-by-case method of the common law. While ultimately the legislature may
        resolve the problems raised by unmarried cohabiting parties, we are not persuaded
        that the court should refrain from resolving such disputes until the legislature gives
        us direction.”).

¶ 114       For more than a century and a half, Illinois courts have adjudicated property
        disputes between family members. See, e.g., Miller v. Miller, 16 Ill. 296, 298-99
        (1855); Collar v. Patterson, 137 Ill. 403, 407 (1891); Heffron v. Brown, 155 Ill.
        322, 326 (1895); Finch v. Green, 225 Ill. 304, 312 (1907); Legate v. Legate, 249 Ill.
        359, 364 (1911). Generally, courts have held that, when people live together in a
        family setting, contributions between them are presumed gratuitous and not
        compensable absent an express or implied contract. See In re Estate of Milborn,
        122 Ill. App. 3d 688, 692 (1984) (“The rule rests on the idea of mutual dependence
        between those who are members of one immediate family ***.” (Emphasis
                                               - 37 -
        omitted.)). Thus, seen in the light of established Illinois law, claims like Brewer’s
        claim are nothing new.

¶ 115        More importantly, claims like Brewer’s claim do not implicate the Marriage
        and Dissolution of Marriage Act and, thus, do not undermine the public policy of
        Illinois, as expressed in the prohibition of common-law marriage, that individuals
        themselves cannot create marriage-like benefits. See supra ¶ 61. Although the
        parties had what the majority terms a “marriage-like relationship” (supra ¶ 1),
        Brewer does not seek “marriage-like benefits” (supra ¶ 61) or “marriage-like
        rights” (supra ¶ 77) in count III. She simply asks to bring the same common-law
        claims available to other people. She should be allowed to do so. The fact that
        Brewer and Blumenthal were once domestic partners should be no impediment.
        See Mason, 476 A.2d at 666 (“the position that the courts will not participate in
        resolving the disputes in accordance with general principles of law and, thus, will
        leave the parties to their own devices, to be unrealistic and unresponsive to social
        need”); Salzman v. Bachrach, 996 P.2d 1263, 1268-69 (Colo. 2000) (en banc)
        (“cohabitation and sexual relations alone do not suspend contract and equity
        principles”). Admittedly, such claims may be difficult to plead and prove (see
        Marsha Garrison, Nonmarital Cohabitation: Social Revolution and Legal
        Regulation, 42 Fam. L.Q. 309, 321 (2008)), but that is a matter for the trial court.

¶ 116       Hewitt’s flaws, both linguistic and legal, have become more apparent with time.
        Our holding there is a court-made rule that this court should overrule. I believe that
        count III of Brewer’s amended complaint should be remanded for the trial court to
        determine whether she has pleaded a cognizable cause of action. For these reasons,
        I dissent.

¶ 117      JUSTICE BURKE joins in this partial concurrence, partial dissent.




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